[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
    EVALUATING HEALTH AND SAFETY REGULATIONS IN THE AMERICAN MINING 
                                INDUSTRY

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             March 1, 2006

                               __________

                           Serial No. 109-31

                               __________

  Printed for the use of the Committee on Education and the Workforce



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                COMMITTEE ON EDUCATION AND THE WORKFORCE

            HOWARD P. ``BUCK'' McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California,
    Chairman                           Ranking Minority Member
Michael N. Castle, Delaware          Dale E. Kildee, Michigan
Sam Johnson, Texas                   Major R. Owens, New York
Mark E. Souder, Indiana              Donald M. Payne, New Jersey
Charlie Norwood, Georgia             Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan           Robert C. Scott, Virginia
Judy Biggert, Illinois               Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania    Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio              Carolyn McCarthy, New York
Ric Keller, Florida                  John F. Tierney, Massachusetts
Tom Osborne, Nebraska                Ron Kind, Wisconsin
Joe Wilson, South Carolina           Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada                David Wu, Oregon
John Kline, Minnesota                Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado        Susan A. Davis, California
Bob Inglis, South Carolina           Betty McCollum, Minnesota
Cathy McMorris, Washington           Danny K. Davis, Illinois
Kenny Marchant, Texas                Raul M. Grijalva, Arizona
Tom Price, Georgia                   Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico         Tim Ryan, Ohio
Bobby Jindal, Louisiana              Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana  [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York
[Vacancy]

                       Vic Klatt, Staff Director
        Mark Zuckerman, Minority Staff Director, General Counsel
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                   CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice         Major R. Owens, New York
    Chairman                           Ranking Minority Member
Ric Keller, Florida                  Dennis J. Kucinich, Ohio
John Kline, Minnesota                Lynn C. Woolsey, California
Kenny Marchant, Texas                Timothy H. Bishop, New York
Tom Price, Georgia                   [Vacancy]
Thelma Drake, Virginia               George Miller, California, ex 
Howard P. ``Buck'' McKeon,               officio
    California,
  ex officio


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on March 1, 2006....................................     1

Statement of Members:
    Capito, Hon. Shelley Moore, a Representative in Congress from 
      the State of West Virginia, prepared statement of..........     3
    Miller, Hon. George, Ranking Minority Member, Committee on 
      Education and the Workforce, prepared statement of.........    35
    Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce 
      Protections, Committee on Education and the Workforce......     1
        Prepared statement of....................................     4
    Owens, Hon. Major R., Ranking Minority Member, Subcommittee 
      on Workforce Protections, Committee on Education and the 
      Workforce..................................................     4
        Supplemental questions to witnesses......................    45
        Newspaper articles:
            Associated Press: ``Additional Blasts Rock Alabama's 
              Biggest Mine, Now Closed''.........................     5
            Birmingham News: ``Another Explosion Rocks Coal Mine; 
              Gas Eruptions Go On in Shoal Creek''...............     6
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia, prepared statement of..........     9

Statement of Witnesses:
    Friend, Hon. Robert, Acting Deputy Assistant Secretary, Mine 
      Safety and Health Administration, U.S. Department of Labor.    12
        Prepared statement of....................................    14
        Response to supplemental questions.......................    55
    O'Dell, Dennis, Administrator for Department on Occupational 
      Health and Safety, United Mineworkers of America...........    19
        Prepared statement of....................................    21
        Additional materials submitted...........................    64
    Watzman, Bruce, Vice President, Safety and Health and Human 
      Resources, National Mining Association.....................    26
        Prepared statement of....................................    28
        Response to supplemental questions.......................    62

Additional Materials Supplied:
    Hawkins, Charles E. III, CAE, Executive Vice President and 
      COO, National Stone, Sand, & Gravel Association:
        Prepared statement of....................................    72
        Supplemental materials...................................    74
    Neason, Mike, Administrator, Mining Practice Specialty of the 
      American Society of Safety Engineers, prepared statement of    90



  EVALUATING HEALTH AND SAFETY REGULATIONS IN THE U.S. MINING INDUSTRY

                              ----------                              


                        Wednesday, March 1, 2006

                     U.S. House of Representatives

                  Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 12:03 p.m., in 
room 2175, Rayburn House Office Building, Hon. Charlie Norwood 
[chairman of the subcommittee] presiding.
    Present: Representatives Norwood, Keller, Marchant, Price, 
McKeon, Owens, Woolsey, Miller, and Holt.
    Staff present: Byron Campbell, Legislative Assistant; Steve 
Forde, Director of Media Relations; Kevin Frank, Coalitions 
Director for Workforce Policy; Ed Gilroy, Director of Workforce 
Policy; Rob Gregg, Legislative Assistant; Richard Hoar, 
Professional Staff Member; Kimberly Ketchel, Communications 
Staff Assistant; Jim Paretti, Workforce Policy Counsel; Molly 
McLaughlin Salmi, Deputy Director of Workforce Policy; Deborah 
L. Emerson Samantar, Committee Clerk/Intern Coordinator; Toyin 
Alli, Staff Assistant; Jody Calemine, Labor Counsel; Michele 
Evermore, Legislative Associate/Labor; Tylease Fitzgerald, 
Legislative Assistant/Labor; Peter Galvin, Senior Legislative 
Assistant/Labor; Tom Kiley, Communications Director; Rachel 
Racusen, Press Assistant; Marsha Renwanz, Legislative 
Associate/Labor; and Mark Zuckerman, Minority Staff Director/
General Counsel.
    Chairman Norwood [presiding]. A quorum being present, the 
Subcommittee on Workforce Protections will now come to order.
    We are meeting today to hear testimony on evaluating health 
and safety regulations in the American mining industry. Under 
Committee Rule 12(b), opening statements are limited to the 
chairman and the ranking minority member of the subcommittee.
    Therefore, if any other members have statements, they may 
be included in the hearing record.
    Of course, we are delighted to have Mr. McKeon, our full 
chairman, here. And if the chairman wishes to make a comment, 
he certainly could.
    With that said, I ask unanimous consent for the hearing 
record to remain open for 14 days to allow member statements 
and other extraneous material referenced during the hearing to 
be submitted in the official hearing record. Without objection, 
so ordered.
    Today we have assembled an expert panel of witnesses to 
help the subcommittee evaluate the safety of American mining 
industry. This hearing will focus on the Mine Safety and Health 
Administration's, MSHA's, role in enforcing the Mine Safety and 
Health Act of 1977 and the responsibilities of mine operators 
and workers to ensure a safe working environment.
    I want this oversight hearing to help identify the safety 
issues facing the mining industry today. This is a very 
important goal that every member of our subcommittee shares.
    However, I do not want it to focus on politics, 
sloganeering, or partisan agenda. It is just simply too 
important. That will not help Congress improve mine safety and 
health. If you are here for the latter, I ask you please to 
reconsider before we begin.
    A few weeks ago, the House honored the miners lost in the 
recent mine accidents in West Virginia and the mine rescue team 
members who risked their lives to try to bring them back to 
safety. I am moved by these families' losses and the bravery of 
the mine rescue teams. They will not be forgotten.
    As I stated earlier, I want to ensure that the focus of 
this hearing is on preventing similar accidents from occurring 
and how to best protect miners, mine rescue teams and 
ultimately to prevent future tragedies.
    With that said, we must keep in mind that the investigation 
of the West Virginia accidents is ongoing, and I do not want to 
prejudice that outcome.
    Republicans and Democrats do not always agree on the major 
issues facing Congress, but I will bet you we all can agree 
that the United States must reduce its need for foreign oil.
    In order to meet that goal, we are asking and turning to 
the mining industry to produce more in order to meet our 
domestic energy needs. This is especially true of the coal 
industry, which is already supplying 50 percent of our nation's 
electricity needs. But it does not stop simply at energy.
    We also rely on domestic mining to support American 
infrastructure and production. In my home state of Georgia, for 
example, we mine a number of different minerals and ore that 
contribute to our nation's construction and consumer needs.
    In fact, Georgia-based kaolin and china clay producers have 
an $830 million economic impact on my state every year. This is 
serious business, and it is important to make sure the folks 
that make this industry work are protected.
    After all, we are asking men and women to go into mines 
every day to work in challenging and sometimes very dangerous 
conditions. Everyone in the industry recognizes the dangers, 
and public policy must ensure that the law and regulations in 
place are protecting these men and women.
    We must also ensure that our laws take into account 
available technology and that laws are fairly enforced. This 
hearing is first in a series of hearings about mining and mine 
safety.
    Several of our colleagues who are not members of our 
committee have requested time to address this subcommittee. I 
want to assure my colleagues that there will be ample 
opportunity to provide their thoughts to this subcommittee in 
an appropriate forum.
    Because of the recently concluded joint meeting of 
Congress, our time today has been shortened. And at this time I 
ask unanimous consent to enter into the record a statement from 
Representative Capito. Hearing no one opposing, it is so 
ordered.
    [Prepared statement of Mrs. Capito follows:

 Prepared Statement of Hon. Shelley Moore Capito, a Representative in 
                Congress From the State of West Virginia

    Mr. Chairman, I want to thank you and the members of the Workforce 
Protection Subcommittee for holding this important hearing on mining 
health and safety regulations. West Virginia has experienced tragedy in 
our mines this year; already 16 miners have been killed at the Sago, 
Alma, and Boone County mines.
    Coal mining is a vital part of West Virginia's economy and provides 
a majority of the electricity used nationwide. We must strive to make 
underground mining as safe as we possibly can.
    Mining is a dangerous profession and unfortunately accidents will 
happen. Our health and safety regulations must be enforced vigorously 
to help prevent accidents and must include provisions for emergency 
communication, tracking, and oxygen devices.
    West Virginia's congressional delegation introduced legislation 
that I hope will bring new safety regulations from MSHA. Communication 
systems and tracking devices are used in mines around the world, and we 
should make better use of these technologies in American mines.
    The lives of dozens of Canadian miners were saved thanks to a 
chamber equipped with oxygen, food and water, and a communications 
device. At a minimum such chambers should be carefully examined to 
determine whether they could be effective in US coal mines.
    We should also examine the requirements for mine rescue teams. When 
miners are trapped below the surface, rescue teams must be ready to 
begin the search as soon as it is safe to enter the mine. Given that 
underground mines vary drastically in design it is important that 
members of a mine rescue team be familiar with the mine.
    I am pleased that the Mine Safety and Health Administration (MSHA) 
has announced emergency regulations to increase the emergency oxygen 
supplies below the surface in mines, require lifelines, and provide for 
faster notification of accidents. The emergency action must not be a 
final step, but a first step in evaluating the technologies, mine 
practices, and response to accidents that can prevent serious injuries 
or death in our nation's mines.
    I encourage the subcommittee to continue to consider the opinions 
of miners, operators, and other stakeholders as the oversight process 
continues. These people work in the mines each day and know the details 
of its work. It is important that their voices are heard as we go 
forward.
    Again, I commend the subcommittee for holding this important 
hearing and look forward to working further on regulations and 
legislation that will improve the safety of our mines.
                                 ______
                                 
    Critics of MSHA have stated their belief that the agency is 
not doing enough to enforce the law. Some also believe that 
MSHA does not have enough money, enough manpower and resources 
to enforce the law. MSHA will have an opportunity to respond to 
those critics and to describe this year's budget proposal.
    Today's panel will address many important policy issues as 
we begin to consider what, if any, changes could or should be 
made to improve the mine act. The policy debate has focused on 
breathable air, improved communications and better miner 
location technology. I urge our witnesses to broaden that 
discussion to any item that will work to improve mine safety.
    I would like to thank all of you, our witnesses, for taking 
your time out from your busy schedule to testify before us 
today. And I truly very much look forward to your testimony.
    Now, with pleasure, I yield to Mr. Owens for whatever 
opening statement he might wish to make.
    [The prepared statement of Chairman Norwood follows:

 Prepared Statement of Hon. Charlie Norwood, Chairman, Subcommittee on 
    Workforce Protections, Committee on Education and the Workforce

    Today we have assembled an expert panel of witnesses to help the 
Subcommittee evaluate the safety of the American mining industry. This 
hearing will focus on the Mine Safety and Health Administration's 
(MSHA) role in enforcing the Mine Safety and Health Act of 1977, and 
the responsibilities of mine operators and workers to ensure a safe 
working environment.
    I want this oversight hearing to help identify the safety issues 
facing the mining industry today. This is an important goal that every 
member of our subcommittee shares. However, I do not want it to focus 
on politics, sloganeering or a partisan agenda. That will not help 
Congress improve mine safety and health. If you're here for the latter, 
I'd ask you to kindly reconsider before we begin.
    A few weeks ago the House honored the miners lost in the recent 
mine accidents in West Virginia and the mine rescue team members who 
risked their lives to try to bring them back safely. I am moved by 
these families' losses and the bravery of the mine rescue teams. They 
will not be forgotten.
    As I stated earlier, I want to ensure that the focus of this 
hearing is on preventing similar accidents from occurring and how to 
best protect miners, mine rescue teams, and ultimately, to prevent 
future tragedies. With that said, we must keep in mind that the 
investigation of the West Virginia accidents is ongoing, and I do not 
want to prejudge that outcome.
    Republicans and Democrats don't always agree on the major issues 
facing Congress, but we all agree that the United States must reduce 
its reliance on foreign oil. In order to meet this important goal, we 
are asking the mining industry to produce more in order to meet our 
domestic energy needs.
    This is especially true of the coal industry, which is already 
supplying fifty percent of our nation's electricity needs.
    But it does not stop at energy. We also rely on domestic mining to 
support American infrastructure and production. In my home state of 
Georgia, we mine a number of different minerals and ore that contribute 
to our nation's construction and consumer needs. In fact, Georgia-based 
kaolin and china clay producers have an $830 million economic impact on 
the state each year. This is serious business, and it's important to 
make sure the folks that make this industry work are protected.
    After all, we are asking men and women to go into mines everyday to 
work in challenging and sometimes dangerous conditions. Everyone in the 
industry recognizes the dangers, and public policy must ensure that the 
law and regulations in place are protecting these miners. We must also 
ensure that our laws take into account available technology and that 
the laws are fairly enforced.
    This hearing is the first in a series of hearings about mining and 
mine safety. Several of our colleagues, who are not members of the 
Committee, requested time to address the subcommittee. I want to assure 
my colleagues that there will be ample opportunity to provide their 
thoughts in the appropriate forum. Because of the recently concluded 
joint meeting of Congress, our time today has been shortened. At this 
time, I ask unanimous consent to enter into the record a statement from 
Representative Capito.
    Critics of MSHA have stated their belief that the agency is not 
doing enough to enforce the law. Some also believe that MSHA does not 
have enough money, manpower, and resources to enforce the law. MSHA 
will have an opportunity to respond to those critics and describe this 
year's budget proposal.
    Today's panel will address many important policy issues as we begin 
to consider what, if any, changes could be made to improve the Mine 
Act.
    The policy debate has focused on breathable air, improved 
communication, and better miner location technology. I urge our 
witnesses to broaden the discussion to any item that will work to 
improve mine safety.
    I would like to thank our witnesses for taking time out from their 
busy schedules to testify before us today. I very much look forward to 
your testimony.
                                 ______
                                 
    Mr. Owens. Thank you, Mr. Chairman.
    I want to begin to acknowledging the front line mine 
workers from the coal mining states of West Virginia, 
Pennsylvania and Ohio who are seated in the audience today. You 
all had to take a day off from work, and you traveled a far 
distance to attend this hearing, so we are delighted to have 
you.
    Those of you who are coal miners, your families, your 
communities and your states will be directly affected not only 
by what we say here today, but also by what we do or fail to do 
here in Washington.
    I expect all hard-working Americans and families to hold 
those of us who are elected officials fully accountable on this 
issue.
    Mr. Chairman, I am pleased that this subcommittee has 
agreed to hold an oversight hearing on mine safety, a hearing 
that members on this side of the aisle requested in the 
immediate aftermath of the Sago Mine disaster, in which 12 
miners were killed on January 4, 2006.
    We are only 3 months into 2006, and already 21 mine workers 
have been killed on the job due to mine explosions, fires, roof 
collapses and other hazards. We must take immediate steps to 
stop this heavy death toll in our nation's mines, and the Mine 
Workers Safety and Health Administration must be at the 
forefront of these efforts.
    I might add that recent press reports have indicated that 
in the Shoal Creek Mine in Alabama there have been several days 
now of mine explosions, and they have been forced to evacuate 
140 workers to safety.
    I ask unanimous consent to enter into the record two 
articles about the blast at the Shoal Creek Mines----
    Chairman Norwood. So ordered.
    [The information follows:]

             (From the Associated Press, February 28, 2006)

       Additional Blasts Rock Alabama's Biggest Mine, Now Closed

                             by jay reeves
    Birmingham--More underground explosions have rocked Alabama's 
largest coal mine since a blast last week forced the evacuation of 
scores of workers, and federal regulators said Tuesday it was unclear 
when production could resume.
    No one has been hurt in any of the blasts, and the government said 
the severity of the explosions was unknown since the mine remains too 
dangerous for anyone to enter.
    The Shoal Creek Mine, which recently underwent a court-ordered 
safety inspection, remained closed for a fifth day Tuesday following 
what regulators said were three blasts. The first occurred early last 
Friday, when about 140 workers were evacuated safely.
    A spokeswoman with the Mine Safety and Health Administration, Amy 
Louviere, said two more explosions occurred Sunday and Monday, but no 
one was at risk because no one had been allowed to re-enter the mine 
after the first explosion.
    Inspectors are checking the mine's air quality through ventilation 
shafts and bore holes, she said, and workers are pumping ``a lot'' of 
water out of the mine. The mine, located about 45 miles west of 
Birmingham, isn't safe enough for teams to enter and begin accessing 
and fixing damage, she said.
    The operator of the mine, Drummond Co., issued a brief statement 
saying the initial explosion was not a ``major event.'' It has not 
commented publicly on the subsequent explosions, and officials with the 
privately owned company did not return telephone calls seeking comment.
    Officials with the United Mine Workers of America also failed to 
return calls.
    Shoal Creek was among more than a dozen operations to undergo 
court-ordered safety inspections by the state in late January and early 
February after the union filed suit over lax oversight by the state.
    The state said its inspection at Shoal Creek was incomplete because 
of time constraints in meeting the court-ordered deadline, and The 
Tuscaloosa News reported that records indicate state regulators did not 
check the area where the initial explosion occurred.
    Shoal Creek is described by Drummond as Alabama's biggest coal mine 
and one of the largest in the nation. It averaged 820 employees last 
year and produced 2.2 million tons of coal.
                                 ______
                                 

               (From the Birmingham News, March 1, 2006)

                   Another Explosion Rocks Coal Mine;
                   Gas Eruptions Go On in Shoal Creek

                           by russell hubbard
    Explosions continue to ignite fires at the Shoal Creek mine, with 
the fiercest one yet happening Tuesday afternoon.
    Monitoring equipment at the evacuated underground coal mine 45 
miles west of Birmingham detected an explosion and fire about 2 p.m., 
said Thomas Wilson, health and safety representative of the United Mine 
Workers of America.
    That is the fourth such methane-fueled blast since Friday at the 
Drummond Co. coal mine that reaches 1,200 feet underground.
    Wilson said Tuesday's explosion caused carbon monoxide monitors to 
register more than 6,000 parts per million, six times the levels 
measured Friday when the mine was evacuated. That level is enough to 
cause death within 15 minutes to exposed humans.
    ``There is nothing else down there to make those readings shoot up 
like that but explosions and fire,'' Wilson said.
    Attempts to reach Birminghambased Drummond for comment were 
unsuccessful. The company, the union and the federal Mine Safety and 
Health Administration are working at the mine near Adger to monitor 
conditions and restore the site.
    The mine was evacuated in the early hours Friday after the first 
explosion and a roof fall. No one was injured. The mine employs 860 
people and produced 3.1 million tons of coal last year. It was 
Alabama's third largest by volume of production in 2005.
103(k) Rule
    The mine has been vacant and idle since Friday. The federal mine 
safety agency has invoked its 103(k) rule, which requires the mine 
operator to get permission before re-opening the site, agency 
spokeswoman Amy Louviere said.
    ``There has been some damage to the ventilation controls,'' 
Louviere said. ``They are drilling holes and boring down to collect air 
samples.''
    Drummond said Friday the explosion was caused by an ignition of 
methane, a colorless and odorless combustible gas that often 
accompanies coal deposits.
    Union official Wilson said next efforts might include piping a 
cement-like material into the mine to seal the area where the 
explosions are happening. That might make things safe enough for 
reclamation teams to descend and assess conditions directly.
    Because the methane is hidden among tons of underground rock, it's 
impossible for the miners to cut it off. The gas is erupting 
unpredictably from the coal face, sparking the explosions and fires, 
Wilson said.
    Of the three aspects of the ``fire triangle''--fuel, oxygen and 
heat--controlling the oxygen level might be the best bet in this case, 
Wilson said.
    ``We have got to take the oxygen away,'' Wilson said. ``This one 
keeps producing its own fuel, the methane.''
    Controlled, targeted flooding is also a technique that might 
interrupt the fire triangle, Wilson said.
Salvage Efforts
    Some mines have burned for extended periods. In 1985, a Jim Walter 
Resources mine in Tuscaloosa County went through a series of 
explosions, said Wilson, who has been traveling the country working on 
such cases for more than 20 years.
    ``We've seen it before, but not in recent years,'' he said.
    There is no way to estimate how long it might take to salvage the 
mine, he said. ``We just don't know how much damage is occurring down 
there.''
    The mine's water pumping equipment was shut off when electricity 
was cut to reduce fire risk. That means the periodic natural flooding 
the mine experiences has been unchecked for more than four days.
    Louviere, of the mine safety agency, said burning mines sometimes 
become too compromised to ever re-open.
    ``It doesn't happen often, but it has happened,'' she said. ``Some 
mines have become so flooded and damaged that they are unrecoverable.''
                                 ______
                                 
    Mr. Owens [continuing]. In Alabama.
    Mr. Chairman, our government is a government for the 
people, by the people, of the people. That means all the 
people, not just the people who own property, not just the mine 
owners, not just the millionaires.
    The security and safety and protection of all the citizens 
is the duty and the obligation of the government. Extreme 
exploitation and exposure of the workers is as much our concern 
as any other, so we are here today to talk about whether or 
government is doing its duty and living up to its obligation to 
protect all of our citizens.
    This poses a significant challenge to MSHA, because the 
Bush administration has severely undermined safety enforcement 
over the past 5 years. Rather than selecting professionals with 
expertise in mine worker safety and health issues for 
leadership positions in MSHA, President Bush appointed a person 
with mining industry management experience.
    This action was akin to turning the clock back to the 1950s 
and 1960s, when staffers from the Bureau of Mines and Interior, 
people whose primary concern was the level of coal mine 
production, were in charge of worker safety.
    But Congress had clearly intended to change that mind set 
by enacting the Federal Coal Mine Health and Safety Act of 1969 
and, subsequently, the Federal Mine Safety and Health Act of 
1977. These acts established MSHA within the Department of 
Labor. We need to return at once to strict adherence to both 
the letter, the intent and the spirit of the 1969 and 1977 mine 
safety laws.
    On top of placing industry insiders in key MSHA posts, this 
administration also started requesting officially with each 
annual budget submission funding cuts and staff reductions for 
MSHA. The MSHA staffers most heavily downsized between 2001 and 
2005 have been those in coal enforcement.
    We have a chart which depicts the coal enforcement staffing 
cutbacks between 2001 and 2005. The graph on this chart 
features a downward slope which is both steep in appearance and 
depressing. It symbolizes a drop-off in coal enforcement.
    The high point of the chart is 1,233 staffers in 2001. The 
low point is a coal enforcement staffing for 2005 at 1,043 
staffers. Overall, 190 positions have been cut in coal 
enforcement at the very time that the division needs to 
reinvigorate if it is to safeguard mine workers.
    The Bush administration also requested steep cuts in 
overall funding for MSHA between 2001 and 2006. This is 
depicted on a second bar chart which tracks MSHA funding 
requests in real dollar terms from 1998 to 2006. The bar chart 
paints this picture for us by comparing the official budget 
requests for each year with the previous year's enacted budget.
    As you can see, annual increases in MSHA's budget were 
requested from 1998 through 2001 during the Clinton years. In 
contrast, annual reductions were requested from 2002 to 2006 
during the Bush years.
    Moreover, since 2001, the Bush administration has either 
withdrawn or delayed some 18 safety regulations under MSHA--18. 
Our third chart lists these rules, a number of which could have 
afforded particularly important protections to mine workers in 
some of the recent disasters.
    For example, a pending rule to improve mine rescue teams, 
which would have given mine operators assistance in having two 
such teams on site, was withdrawn on September 4, 2002. When 
the Sago Mine disaster struck, it took more than 5 hours to get 
the rescue teams in place.
    Another regulation to ensure the flame resistance of 
conveyor belts was withdrawn on July 15, 2002. The Bush 
administration adopted a dangerous rule in its place, 
permitting conveyor belt air entries to be used as the sole 
ventilation source for working places in the mine. In January 
of this year, the Aracoma Alma Mine's conveyor belt caught fire 
and killed two workers.
    Mr. Chairman, as a result of these staff reductions in coal 
enforcement, overall funding cutbacks in MSHA, and withdrawal 
of important safety rules, a lot of work is now required to 
strengthen protections for mine workers.
    To ensure that that happens, Congressman Rahall has 
introduced a bipartisan bill, H.R. 4695. On behalf of the 
entire West Virginia delegation and others on this committee, I 
ask you to schedule a markup on that bill as soon as possible 
and also ask unanimous consent that a statement by Congressman 
Rahall be included in this hearing record.
    Chairman Norwood. So ordered.
    [The prepared statement of Mr. Rahall follows:]

    
    
    
    
    Mr. Owens. In closing, I want to welcome Mr. O'Dell, who 
directs Occupational Health and Safety at the United Mine 
Workers of America. As we will hear from Mr. O'Dell, who spent 
some 20 years as an hourly employee in coal mines, we know how 
to prevent these tragic mine workers' deaths.
    I look forward to hearing his testimony and the testimony 
of the other witnesses. Thank you.
    Chairman Norwood. Thank you very much, Mr. Owens. And you 
know, just so we are fair and balanced, it should probably be 
said that the MSHA budget has risen 40 percent over the past 
decade, and mine safety funding has increased $30 million under 
President Bush. I just think that probably ought to be in the 
record, because it is true.
    Subcommittee members, we have a very distinguished panel of 
witnesses today, and I would like to introduce them to you. 
First, we have Mr. Robert Friend, who is acting deputy 
assistant secretary at the Mine Safety and Health 
Administration.
    Mr. Friend joined MSHA in 1978 as a metal/non-metal 
inspector. He worked in several MSHA regions before joining 
headquarters. He is a certified mine safety professional, as 
recognized by the International Society of Mine Safety 
Professionals.
    Mr. Friend, you are most welcome.
    Next, we have Mr. Ray McKinney. He is the administrator for 
the Coal Mine Safety and Health at the Mine Safety and Health 
Administration. Mr. McKinney joined MSHA in 1976 as a coal mine 
inspector. He is a certified mine safety professional. And what 
I like, he was a coal miner and a member of a mine rescue team 
prior to joining MSHA.
    In addition, he has received the Department of Labor's 
Valor Award for the safe rescue of a miner trapped in Scotia 
Coal Company's Upper Taggart Mine.
    And we certainly congratulate you on that.
    Next we have Mr. Dennis O'Dell. He is the administrator for 
the Occupational Health and Safety for the United Mine Workers 
of America. Mr. O'Dell worked in all aspects of coal mining 
before becoming a member of the UMWA leadership.
    Mr. O'Dell is an instructor at the National Mine Academy in 
Beckley, West Virginia and was appointed to the Mine Safety and 
Health Research Advisory Committee in 2006. He has been a full-
time representative of the UMWA for 11 years.
    Lastly, we are happy to have Mr. Bruce Watzman--is vice 
president of safety and health and human resources for the 
National Mining Association. Mr. Watzman holds a master's 
degree in environmental health management. He has worked for 
the National Mining Association and its predecessor, the 
National Coal Association, since 1980.
    Mr. Watzman is a recognized expert in the field and was 
also recently appointed as a member of the mine safety and 
health research advisory committee.
    A quick note: Although both Mr. Friend and Mr. McKinney are 
appearing before us today, only Mr. Friend will present an 
opening statement. Both gentlemen, however, will be available 
for your questions.
    And as you see, committee, we have a very distinguished 
group.
    And we are here to learn from you gentlemen today.
    I want to remind the members, however, that we will be 
asking questions of the witnesses after all four of you 
testify. In addition, Committee Rule 2 imposes a 5-minute limit 
on all questions.
    Gentlemen, I think all of you are familiar with the timers. 
I just do not like cutting people off at all. It makes me ill 
at ease. If you can try to sort of see that caution light come 
on, we really would appreciate it.
    And with that, Mr. Friend, you are recognized now for 5 
minutes.

   STATEMENT OF HON. ROBERT FRIEND, ACTING DEPUTY ASSISTANT 
    SECRETARY, MINE SAFETY AND HEALTH ADMINISTRATION, U.S. 
                      DEPARTMENT OF LABOR

    Mr. Friend. Thank you, Mr. Chairman. Mr. McKinney and I are 
pleased to appear before you today to discuss the work of the 
Mine Safety and Health Administration. We appreciate your 
interest in MSHA and the opportunity to share with you the 
current activities in which the agency is engaged.
    In recent years, the mining industry has experienced 
historic lows in injury and fatality rates. In 1978, the first 
year MSHA operated under the new mine act, 242 miners died in 
mining accidents. Last year there were 57 fatalities, 22 at 
coal mines and 35 at metal and non-metal mines.
    From 2000 to 2005, the mining industry as a whole 
experienced a 33 percent decrease in fatal accidents 
nationwide, a 42 percent decline in coal mines. The coal mine 
lost time injury rate has declined one-third over the past 5 
years. These are important and compelling statistics that put 
the current state of mine safety and health in this country in 
its proper perspective.
    MSHA inspectors vigorously enforce the law. With the 
support of the entire agency, last year MSHA issued the highest 
number of citations and orders since 1994.
    In recent years, in order to gain compliance, MSHA has 
increased its use of withdrawal orders, which is a powerful 
tool that requires miners to be withdrawn from areas affected 
by a violation. Many times this also results in lost 
production.
    During the last 5 years, the number of withdrawal orders 
increased 20 percent over the previous 5 years. MSHA issued 
more withdrawal orders in both 2004 and 2005 than in any year 
since 1994.
    It is important to note that any MSHA violation must be 
abated within a specified time frame and before any penalty is 
assessed. In the case of withdrawal orders, the hazard must be 
abated before miners are allowed to return to work in the area 
or activity affected by that order.
    Recent statistics show our strong enforcement record very 
strongly. From fiscal year 2000 to fiscal year 2005, total 
citations and orders issued by MSHA at all mines increased five 
percent. Total citations and orders issued at coal mines 
increased by 19 percent. Total significant and substantial 
citations and orders issued at coal mines increased by 13 
percent.
    However, I want to make something clear. And diligently and 
vigorously as MSHA inspectors enforce the law, MSHA does not 
have the authority to preemptively close entire mines because 
of the number or the frequency of violations. We do not have 
that authority under the mine act.
    While we stand by our record, we know there is more to do. 
We are now conducting thorough investigations of the recent 
tragic accidents at Sago and Alma Mines. We are determined to 
learn lessons from those accidents that can help us to continue 
to improve mine safety and health.
    We are happy to respond to your specific questions about 
these two incidents, keeping in mind that this is an ongoing 
investigation and it would be inappropriate at this stage to 
speculate on the root causes of those accidents.
    Although there have been great improvements in mine safety 
and health, as long as there is one fatality or one ill or 
injured miner, we know we have more work to do. We must 
continually seek new and improved accident-prevention measures, 
and we must give miners who are involved in accidents every 
chance for survival.
    Some of the areas we are working on to achieve that goal 
include new rulemaking and mine technology evaluations.
    I want to make sure that people know that MSHA will hold a 
public meeting on Monday, March 13 at the National Press Club 
in Washington, D.C. to get comments on two specific topics 
covered in our request for information. Those are technology 
used for underground communications and tracking of underground 
miners.
    We are also evaluating the efficacy and large-scale 
permissibility of existing advanced underground mine 
communications and tracking systems currently used in Australia 
and in a small number of U.S. coal mines.
    MSHA is reexamining mine rescue issues, and we are working 
jointly with mine industry representatives to standardize mine 
emergency procedures related to mine rescue organization, lines 
of communication and lines of authority.
    I would like to turn now to the question of MSHA resources. 
I have seen recent reports that cite the decrease in the number 
of mine enforcement personnel as evidence of an indifferent 
attitude toward mine safety and health.
    I want to assure you that MSHA currently has sufficient 
resources to conduct the inspections mandated by the mine act. 
The number of federal mine enforcement personnel has remained 
relatively constant over the last 10 years, from a low of 902 
in 1998 to a high of 986 in 2003.
    We have shifted some resources into the metal and non-metal 
area as the workload has changed between these two industry 
sectors. While the number of coal enforcement personnel 
declined 15 percent over the last 10 years, the number of coal 
mines decreased 24 percent during that same time period.
    The president has requested sufficient funding levels for 
MSHA to conduct the required inspections of the mine, 
requesting an increase in the agency funding every year.
    I want to conclude with something that bears repeating time 
and again, something that everyone should understand. Every 
single employee at MSHA is dedicated heart and soul to the 
agency's mission.
    Every employee of the MSHA lives and breathes for the day 
when there are no fatalities, no injuries and no occupational 
illnesses among the country's miners. Every employee at MSHA 
strives every day to reach that goal, sending every miner in 
this country home to family and friends at the end of every 
shift, every day.
    We will not rest until that happens. Thank you.
    [The statement of Mr. Friend follows:]

    Prepared Statement of Robert M. Friend, Acting Deputy Assistant 
             Secretary of Labor for Mine Safety and Health

    Mr. Chairman: I am pleased to appear before you today to discuss 
the ongoing work of the Mine Safety and Health Administration (MSHA). 
MSHA works diligently to promote mine safety and health. We want 
nothing more than to send every miner home safely at the end of every 
shift, every day.
    We have been moving closer to that goal every year. In recent 
years, the mining industry has experienced historic lows in injury and 
fatality rates. In 1978, the first year MSHA operated under the new 
Mine Act, 242 miners died in mining accidents. Last year, there were 57 
mining fatalities, 22 at coal mines and 35 at metal and nonmetal mines. 
From 2000 to 2005, the mining industry experienced a 33% decrease in 
fatal accidents nationwide--with coal mines seeing a 42% decline. The 
coal mine lost-time injury rate declined one-third over the last five 
years. These are important and compelling statistics one must consider 
in placing current mine safety and health conditions in a proper 
perspective.
    MSHA inspectors vigorously enforce the law--with the support of the 
entire agency, top to bottom. Last year, MSHA issued the highest number 
of citations and orders since 1994. In recent years, MSHA increased its 
use of ``withdrawal orders'' to gain compliance with the standards. 
This is a powerful enforcement tool as withdrawal orders require miners 
to be removed from the area affected by the violation, often resulting 
in disruptions to production. The number of withdrawal orders increased 
20% over the last five years when compared to the previous five years. 
MSHA issued more ``withdrawal orders'' in both 2004 and 2005 than in 
any year since 1994. It is important to note that any MSHA violation 
must be abated within a specified time frame before the penalty is 
assessed. In the case of withdrawal orders, the hazard must be abated 
before miners are allowed to work in the area or activity affected by 
the hazard.
    The statistics show our strong enforcement record very clearly. 
From FY2000 to FY2005:
     Total Citations and Orders issued by MSHA at all mines 
increased by 5% (119,183 to 125,161)
     Total Citations and Orders issued at coal mines increased 
by 19% (56,870 to 67,756)
     Total ``Significant and Substantial'' Citations and Orders 
issued at coal mines increased by 13% (23,586 to 26,717)
     MSHA enforcement personnel have significantly increased 
the issuance of withdrawal orders to coal mine operators who exhibit an 
unwarrantable failure to comply with the regulations. Unwarrantable 
failure orders are one of the most severe enforcement actions 
inspectors can take and in each of the last two years MSHA inspectors 
issued more such orders than in any year in the last ten years.
    While enforcement activity and the number of miners went up from 
2000 to 2005, the number of coal mines fell. There were 2,124 coal 
mines in 2000 and 1,982 in 2005 (through the third quarter) and 108,098 
coal miners in 2000 and 112,449 in 2005 (through the third quarter). 
Clearly, MSHA inspectors continue to vigorously enforce the law--with 
the support of the entire agency, top to bottom.
    I want to make something clear. MSHA's inspectors diligently and 
vigorously enforce the law. However, the Mine Act does not give MSHA 
the authority to preemptively close entire mines because of the number 
or frequency of violations. Nor does the Mine Act include the authority 
to close or seize a mine because of unpaid fines or penalties.
    While we are proud of our enforcement and compliance record, we 
know there is more to do. We are currently engaged in a thorough 
investigation of the recent tragic accidents at Sago and Alma Mines. We 
are determined to learn from these accidents.
    First, I want to publicly recognize the mine rescue teams who 
responded to the accidents at Sago Mine and Alma #1 Mine. These teams 
demonstrated exceptional bravery and professionalism, and they should 
be commended for their efforts, as well as for their dedication to 
their fellow miners.
    I would like to give you an update on the Sago Mine and Alma Mine 
#1 accident investigations. We have finished mapping the underground 
areas of the Sago mine and have completed nearly all of the witness 
interviews. Thus far, MSHA and representatives from the State of West 
Virginia have interviewed forty-six individuals. We have completed an 
evaluation of the geology of the roof in the abandoned area of the mine 
where the explosion occurred. In conjunction with the National 
Institute for Occupational Safety and Health (NIOSH), we are developing 
a protocol to test the materials used in the Sago mine to seal the area 
where the explosion occurred. At this time we have no information that 
would suggest that the explosion is related to any conditions that MSHA 
enforcement personnel observed and cited at the mine before the 
explosion.
    We have completed the investigation of the underground areas of the 
Alma #1 mine with the exception of the immediate vicinity where the 
fire occurred. There are significant roof falls in this area that will 
have to be removed before the underground portion of the investigation 
can be completed. At this time we have interviewed 14 individuals and 
the remaining interviews should be completed within the next several 
weeks.
    As standard operating procedure, MSHA conducts an internal review 
after every major accident. We will look carefully to see if MSHA 
followed its own policies and procedures with respect to Agency 
activities prior to and during the accident. This report will be shared 
with this committee and made public. MSHA has always viewed its 
internal review process as an opportunity to take a hard and honest 
look at how we do our job and to use that information to improve how we 
do business. Past reviews have been comprehensive and objective 
examinations that resulted in responsible recommendations for 
improvement. The Government Accountability Office and the Department's 
Office of the Inspector General are also conducting independent reviews 
of various aspects of MSHA's programs.
    Despite the progress the mining industry has achieved in the area 
of health and safety, there is always room for improvement. The recent 
fatalities in West Virginia, along with other recent fatalities, are 
vivid reminders that we must continually seek new and improved accident 
prevention measures. And when accidents occur, we need to give miners 
the best possible chance to survive. I want to share some of the 
actions MSHA is currently taking in the areas of rulemaking, mining 
technology, mine rescue operations, and civil penalty assessments.
Emergency Temporary Standard
    MSHA's safety and health standards are constantly being reviewed 
and adjustments made to improve them or address newly recognized 
hazards. As a direct result of the recent two West Virginia accidents, 
we will soon be issuing an Emergency Temporary Standard to improve 
safety in underground mines in the areas of: underground supplies of 
oxygen generating breathing devices, training, lifelines, and accident 
notification.
Technology
    There has been much discussion surrounding the availability of 
technology and equipment that, if available to miners during and after 
fires and explosions, could increase their chances for survival. MSHA 
constantly searches for and evaluates emerging technologies that can be 
used to protect miners. On January 25, 2006, MSHA published in the 
Federal Register a Request for Information (RFI) on Underground Mine 
Rescue Equipment and Technology.
    MSHA is currently in the process of evaluating advanced underground 
mine communication and tracking systems. The Personal Emergency Device 
(PED) system is a one way ``through the earth'' communication system 
used in Australia, but only used in about a dozen underground mines in 
the U.S. MSHA is evaluating the PED at four different U.S. underground 
coal mines, and plans to evaluate the system at the only U.S. mine with 
a surface-mounted antenna. Information on PED performance will also be 
collected in Australian coal mines. Although the PED could send 
evacuation instructions to miners in the early stages of a fire, system 
limitations already noted in MSHA's field evaluations may seriously 
compromise the reliability or true usefulness of the PED during a U.S. 
mine emergency. These shortcomings include the vulnerability of 
commonly-installed underground antennas in the event of a fire or 
explosion, signal loss issues, range limitations, and potential 
interference with other mine communication systems.
    The Tracker Tagging System is an MSHA-approved tracking system for 
use in underground mines. A remote unit, carried by a miner, transmits 
its location to a ``beacon'' receiving unit as the miner passes the 
beacon. Tracking of miners is limited to identifying their location in 
the ``zone'' between two beacons where any given transmitter is 
located, and beacons are commonly spaced at 3,000--4,000 ft. intervals. 
While some have advocated mandating its use in underground mines in the 
U.S., little is known about the system's performance. There are no 
underground mines in the U.S. using the Tracker Tagging System. While 
it is used in several mines in Australia, it is used in just one 
underground coal mine in that country, and one coal mine in China.
    Both the Tracker Tagging system and the PED system must be further 
evaluated and their effectiveness tested before rushing into a decision 
to mandate their use in underground mines. To that end, in a 
cooperative effort with the manufacturer of both systems, MSHA and the 
West Virginia Board of Coal Mine Health and Safety will visit four 
mines in Australia this month to conduct further field evaluations of 
the two systems. The issues reported in U.S. mines regarding signal 
loss or ``shadow'' zones will be further investigated to accurately 
determine the nature of these anomalies.
    Other available communication technologies for consideration are 
actively sought through the RFI. MSHA is soliciting technical 
presentations or written comments on underground communications and 
systems for tracking underground miners and will hold a public meeting 
specifically for that purpose on March 13th at the National Press Club 
in Washington, D.C. We are hopeful that the information gathered at 
this meeting, together with the conclusions drawn following the field 
evaluations of the PED and Tracker systems in both the United States 
and Australia, will help direct MSHA and all other concerned parties in 
our efforts to provide the best available communications technologies 
to miners in the event of an emergency underground.
    Furthermore, in response to the recent RFI noted above, MSHA has 
received more than 70 proposals from manufacturers and distributors of 
emergency communication and tracking systems. Additional proposals 
continue to come in on a daily basis. MSHA's Technical Support 
Directorate is currently reviewing these products and proposals and 
will assist interested manufacturers in obtaining approval for the 
equipments' use in underground mines. For our initial reviews we are 
prioritizing the emergency communications or tracking systems that do 
not rely on a wire back-bone and that have the greatest potential to 
remain functional in the event of a roof-fall, inundation, fire, or 
explosion. From the over 70 proposals received, MSHA has initially 
selected several promising communication systems to evaluate based on 
the following criteria: precise tracking and 2-way voice preferred 
capability; survivability in a fire or explosion; current availability; 
and capability of complying with MSHA requirements.
    To help expedite and standardize the evaluation of these existing 
and promising technologies, a mine communications partnership is being 
formed with membership consisting of the National Institute for 
Occupational Safety and Health (NIOSH), MSHA, the Bituminous Coal 
Operators Association (BCOA), the United Mine Workers of America 
(UMWA), the United Steelworkers, the National Mining Association (NMA), 
and the State of West Virginia. The primary goals of this partnership 
are to establish general performance expectations for mine emergency 
communications systems, establish uniform and fair criteria for testing 
and evaluating systems, and to conduct in-mine tests on systems. A 
secondary goal is to identify gap areas that should be addressed 
through research.
    The State of West Virginia, MSHA, and NIOSH are co-sponsoring the 
International Mining and Health Safety Symposium on April 20-21, 2006. 
The symposium will bring together technology developers, equipment 
manufacturers, the Federal Government, the State of West Virginia, 
organizations representing the mining community, and other countries to 
discuss the development, approval, and adoption of state-of-the-art 
technologies and mining methods. Wheeling Jesuit University will host 
the symposium at the Robert C. Byrd National Technology Transfer Center 
and the Civic Center in Wheeling, WV.
    MSHA is working with the BCOA and the NMA to jointly develop a 
template on mine rescue preparedness. This document will describe 
standardized mine emergency procedures related to mine rescue 
organization, lines of communication, and establishing lines of 
authority.
    In addition, MSHA has sought information from the entire mining 
community, including labor, industry, academia, and local first-
responders on improvements to mine rescue preparedness.
Civil Penalty Assessments
    Assessments are civil penalties (fines) levied on mine operators, 
independent contractors working on mine property, agents of operators 
or contractors, or, in some cases, individual miners, for violating 
safety or health standards or sections of the Mine Act. The process of 
determining penalty amounts is governed by the criteria included in the 
Mine Act and federal regulations. The penalty assessment process is 
administered by an MSHA office separate from the enforcement arms of 
the agency to ensure the objectivity of the fines proposed for 
violations. The Office of Assessments implemented the most recent 
guidelines for proposing civil penalties in 2003.
    These penalties range from $60 to a statutory maximum of $60,000. 
The $60 fine is generally imposed for less serious, timely abated 
violations that occur in mines with low violation histories. More 
serious violations may receive a computer-generated regular formula 
assessment that assigns points based on criteria specified in the Mine 
Act. The most egregious violations may receive higher assessments with 
proposed penalty amounts determined by assigned specialists. The 
statutory maximum of $60,000 can be imposed for regular formula or 
special assessments.
    Proposed civil penalty amounts are determined using five statutory 
criteria in the Mine Act:
     the size of the operation,
     the operation's history of violations,
     the negligence of the operator,
     the gravity of the violation, and
     the degree of good faith the operator exhibits in 
correcting the violation.
    A sixth statutory criterion, the ability of the operator to 
continue in business, is taken into account only after the amount of 
the fine is proposed and presented to the operator. The operator must 
provide convincing evidence of financial hardship and inability to 
continue in business. In these cases, MSHA may adjust the fine.
    If the mine operator thinks the proposed penalty is too high, the 
operator can contest the penalty. The contested penalty first goes to 
an administrative law judge of the Federal Mine Safety and Health 
Review Commission who can uphold the original penalty, vacate the 
penalty, reduce the penalty, or (in rare instances) increase the 
penalty. If the operator is dissatisfied with that result, the operator 
can ask the full Federal Mine Safety and Health Review Commission to 
hear the case. If the Commission takes the case and the operator is 
dissatisfied with that result, the operator can appeal to the Court of 
Appeals. Sometimes this process takes several years. A case may 
ultimately go to the Supreme Court.
    Operators have 30 days to pay or contest their fines once they are 
assessed. If the fine is not contested, it is considered a final order 
of the Commission after the 30 days. If these fines are not paid within 
30 days, MSHA begins contacting the operator and 8% interest begins to 
accrue. If the debt remains unpaid for 90 days, an additional non-
payment penalty of 6% begins to accrue, retroactive to the date the 
fine became final.
    Penalties are considered debts under the provisions of the Debt 
Collection Improvement Act of 1996. When a debt is delinquent more than 
180 days, MSHA refers the debt to the Department of the Treasury for 
collection. Treasury may attempt to collect the debt directly, refer 
the debt to a private collection agency, collect the debt by offsetting 
Federal payments made to the debtor, or, ultimately, refer the debt to 
the Department of Justice for collection. If this process is 
unsuccessful, MSHA may terminate collection of the debt and report it 
to the Internal Revenue Service to be included in the company's income 
tax liability as taxable income.
    MSHA cannot close a mine if it has too many fines or does not pay 
the fines assessed. The Mine Act does not give MSHA that authority. 
MSHA is neither soft on enforcement nor soft on assessments. This 
Administration stands by its assessment record. Over the last five 
years, MSHA proposed 21 percent more penalties at the $10,000 or higher 
level than during the previous five years. The total dollar value was 
up by 16 percent during this same period of time.
    Approximately 6% of citations and orders are contested. Litigation 
at the Commission or in federal court impacts a large percentage of 
contested proposed assessments. For assessments contested between 1995 
and 2005, 46 percent of the penalties were reduced and the average 
reduction in the penalty was 47 percent. The Administration has already 
proposed legislation to increase the maximum civil penalty for flagrant 
violations from $60,000 to $220,000. Additionally, I been directed to 
re-examine the penalty amounts and MSHA will soon propose rule making 
revisions to the penalty schedule (subject to the statutory $60,000 
penalty cap).
    MSHA has also filed two lawsuits in February in the U.S. District 
Court for the Eastern District of Kentucky seeking injunctions against 
two separate mine operators who have chronically failed to pay assessed 
civil penalties for violations of the Mine Act. The complaints ask that 
both operators be enjoined from failing to pay penalties for future 
violations of the Mine Act and that both be required to post a bond 
with the court to guarantee future compliance with the law. MSHA is 
also evaluating other cases involving operators who have refused to pay 
civil penalties and will seek injunctions against them where 
appropriate.
    Finally, it is important to note that any MSHA violation must be 
abated within a specified time frame even before the penalty is finally 
assessed. In the case of withdrawal orders, the hazard must be abated 
before miners are allowed to work in the area or activity affected by 
the hazard.
    Every employee at MSHA is dedicated heart and soul to the agency's 
mission. Every employee at MSHA lives and breathes for the day when 
there are no fatalities, no injuries, and no occupational illness among 
all of this country's miners. Every employee at MSHA strives every 
second of every day to reach our goal: sending every miner in this 
country home to family and friends, safe and healthy, at the end of 
every shift, every day. We will not rest until that happens.
    Thank you.

    
    
    
    
    
    
                                 ______
                                 
    Chairman Norwood. Thank you very much, Mr. Friend.
    Mr. O'Dell, you are now recognized for 5 minutes.

  STATEMENT OF DENNIS O'DELL, ADMINISTRATOR FOR DEPARTMENT ON 
 OCCUPATIONAL HEALTH AND SAFETY, UNITED MINEWORKERS OF AMERICA

    Mr. O'Dell. Mr. Chairman, members, I want to thank you for 
allowing me this opportunity to appear before your committee. I 
am testifying on behalf of the United Mine Workers of America.
    I come out of the coal fields having been an underground 
coal miner for 19 years as well as both a local union 
international safety representative and a local union safety 
committee man.
    I participated in many recent and most tragic mining 
disasters of the last decade, including the Jim Walter's No. 5 
mine explosion in September of 2001 and the Sago Mine disaster 
earlier this year.
    We are here today to review the performance of the Mine 
Safety and Health Administration, known as MSHA. The UMWA 
recognizes that MSHA includes many hard-working civil servants 
whose efforts coal miners deeply appreciate. However, we 
believe MSHA's top policy makers have fallen short.
    In the hearing room this afternoon are a number of active 
miners from coal mining states that sit behind us. They are 
here because they care deeply about miners' health and safety. 
They join me in urging Congress to ensure that MSHA 
aggressively protects miners' health and safety so that they 
can perform their job safely and return home to their families 
each and every day.
    MSHA's not developing enough new mandatory standards to 
protect miners' health and safety, and through policy it is 
allowing operators to pursue practices that compromise rather 
than enhance miners' health and safety.
    We hope that this committee can help redirect MSHA so that 
it will engage in the principal activities Congress mandated 
when it crafted the mine act shortly after 78 miners died at 
Farmington, West Virginia in 1968.
    These laws were written to protect the health and safety of 
miners after this major disaster occurred, yet mining still 
remains the second most dangerous industry in this country. 
Every year, thousands of miners remain disabled and dying from 
black lung disease, while many other miners die in mining 
accidents every year.
    Most often, mining accidents claim the lives of one or two 
miners at a time, from roof falls, equipment failures, 
electrical problems and other accidents. In just the first 6 
weeks of 2006, in addition to the 12 miner who perished at the 
Sago Mine and the two who died in the January 19 mine fire at 
Massey's Aracoma on the No. 1 mine, seven other coal miners 
also have died one at a time.
    It is also interesting to note that there are countless 
near-misses that occur on a regular basis. Since August of 
2000, MSHA records show there are well over 400 mine fires, 
ignitions, explosions and inundations that too far easily could 
have developed into significant disasters and fatalities, some 
of which has just recently occurred last week at the VP 8 mine 
in Virginia and Shoal Creek Mine in Alabama.
    Many other incidents like these likely went unreported. As 
a result, tragedies at the Sago and the Alma No. 1 coal mine 
demonstrate, there is a serious void in the regulatory 
framework for underground miners confronting a mine emergency.
    While there is a lot yet to be determined about these 
incidents, the note that Sago miner George Junior Hamner wrote 
to his wife and daughter reveals that most miners survived the 
initial explosion at the Sago Mine. This demonstrates that 
those miners had no information about where to find fresh air 
or about how they might have been able to exit the mine.
    Though Congress specifically suggests in 1969 that the 
secretary consider promulgating a rule requiring rescue 
chambers for miners to find shelter in an emergency, we are 
unaware of any substantial efforts that have been made to 
pursue this option since the act was written.
    At the Alma Mine, miners were killed after a mine fire 
erupted on a belt that was used to ventilate the mine. If belt 
air had not been permitted, and if belts were not flammable, or 
if the miners had more oxygen, perhaps the outcome of these 
miners' fate would have been different.
    These deficiencies in miners' health and safety are all 
ones MSHA has known about for many, many years. Most of them 
have been known since the coal act was passed in 1968, over 37 
years ago.
    Problems of no communication, the inability to locate 
underground miners, insufficient self-rescuers were all noted 
as problems that confronted miners as far back as Farmington 
No. 9, the Jim Walter's No. 5 mine, Sago Mine and the Alma No. 
1 mine. Experience demonstrates that most miners will not have 
them available when the next emergency strikes.
    Unfortunately, under former assistant secretary MSHA, David 
Lauriski, 17 proposed rules were scrapped. I attached a list of 
those withdrawn rules with my testimony.
    Along with some of those protections that would have--along 
with some of those protections, it would have helped miners who 
perished at Sago and Alma be able to avoid their disastrous 
fates.
    Examples: As a rule that would have imposed new procedures 
and requirements for flame-resistant conveyor belts, to 
reinstate the non-use of belt air to ventilate working areas, a 
rule concerning improvements for self-rescuers, which we only 
got in 1982. And it took us 12 years to 20 years to be able to 
have Congress enact that under a court order.
    Even with the recent spate of coal mining fatalities, I 
consider the industry lucky to not have suffered more injuries 
and deaths. This is because for too many years, the agency has 
not been writing new rules to protect miners and has not been 
doing a good job enforcing the rules it already has.
    Mining is dangerous work. When you at the agency take that 
serious, when Congress first said in the mine act that they 
declare the first priority of all in the coal and other mining 
industry must be the health and safety of its most precious 
resource, the miner, we take that serious.
    Everyone else associated with the mining industry must 
reestablish miners' health and safety as their top priority. 
Also, senseless deaths and injuries must stop. I urge you to 
require MSHA to do in 2006 all that Congress demanded in 1969 
and again in 1977.
    Regulations that were in the pipeline in 2001 and 2002 
should be reactivated and finalized in a timely fashion. New 
regulations to protect miners both while on the job and on 
emergency strike must be promulgated. All such regulations must 
then be enforced regularly and aggressively.
    I thank you for your interest in miner safety and will be 
happy to answer any questions you have later.
    [The statement of Mr. O'Dell follows:]

   Prepared Statement of Dennis O'Dell, Administrator, Department of 
      Occupational Health & Safety, United Mine Workers of America

    Thank you for allowing me this opportunity to appear before your 
Committee. I am testifying on behalf of the United Mine Workers of 
America (``UMWA''), the union that has been an unwavering advocate for 
miners' health and safety for 116 years. I come out of the coal fields, 
having been an underground coal miner for 19 years, as well as both a 
Local Union and International safety representative. I have 
participated in many of the recent and most tragic mining disasters of 
the last decade, including the Jim Walters No. 5 mine explosion in 
September 2001, and the Sago Mine disaster earlier this year.
    Miners' health and safety has been in the headlines for much of 
2006 because so many coal miners have perished. In fact, nearly as many 
miners died in just the first six weeks of 2006 as in all of 2005.
    We are here today to review the performance of the Mine Safety and 
Health Administration (``MSHA''). The UMWA recognizes that MSHA 
includes many hard-working civil servants whose efforts coal miners 
appreciate. However, MSHA's top policy-makers have fallen short. They 
have not been doing their job protecting and enhancing miners' health 
and safety.
    In the hearing room this afternoon are a number of active miners 
from coal mining states. They are here because they care deeply about 
miners' health and safety. They join me in urging Congress to ensure 
that MSHA aggressively protects miners' health and safety, so that they 
can perform their jobs safely and return home to their families each 
and every day.
    Focusing on MSHA's rulemaking responsibilities, it is apparent that 
the Agency has failed to promulgate rules that will better protect 
miners. MSHA has enacted rules that help operators' productivity while 
it withdraws potential rules that it should promulgate to advance 
miners' health and safety.
    Coal is being produced at record high levels. At the same time, far 
fewer miners are needed to extract the mineral. However, MSHA has not 
promulgated rules to keep pace with record productivity and the new 
mining techniques, which sometimes introduce new hazards.
    I will first review how current mine safety laws came into being; 
and then describe a number of ways in which MSHA has failed to protect 
miners' health and safety: it is not developing enough new mandatory 
standards to protect miners' health and safety, and through ``policy'' 
it is allowing operators to pursue practices that compromise--rather 
than enhance--miners' health and safety. We hope that in exercising 
your oversight responsibilities, this Committee can help redirect MSHA 
so it will engage in the principal activities Congress mandated when it 
crafted the Mine Act.
    Shortly after 78 miners died at Farmington, West Virginia in 1968 
Congress enacted the Coal Act in 1969; the legislation was then 
expanded to other mining industries and renamed the Mine Act in 1977. 
Since the Coal Act was passed, fatalities in coal mining have decreased 
dramatically: while over 300 miners died in 1968, the year before the 
Coal Act was enacted, fewer than 100 miners have perished in any single 
year over the last 20 years. Yet, mining still remains the second-most 
dangerous industry in this country.
    Every year thousands of miners remain disabled and dying from black 
lung disease, while many other miners die in mining accidents every 
year. Most often, mining accidents claim the lives of one or two miners 
at a time, from roof falls, equipment failures, electrical problems, 
and other accidents. In just the first six weeks of 2006, in addition 
to the 12 miners who perished at the Sago mine and the two who died in 
the January 19 mine fire at Massey's Aracoma Alma #1 mine, seven other 
coal miners also died, one at a time.
    There are also countless near-misses that occur on a regular basis. 
Since August 2000, MSHA records show there were well over 400 mine 
fires, ignitions, explosions and inundations that far too-easily could 
have developed into significant disasters and fatalities. Many other 
incidents likely went unreported.
    In passing the Coal and Mine Acts, Congress made it clear that a 
primary purpose of the legislation was to require the Secretary to 
promulgate mandatory health and safety standards, and to ensure that 
operators would follow all health and safety standards, including the 
long list of ``interim mandatory standards'' that Congress wrote into 
law.
    However, MSHA has done neither: it has not promulgated sufficient 
protective health and safety standards, and it has failed to 
aggressively enforce the regulations it has on the books.
    As the recent tragedies at the Sago and Alma No. 1 coal mines 
demonstrate, there is a serious void in the regulatory framework for 
underground miners confronting a mine emergency. While there is a lot 
yet to be determined about these accidents, the note that Sago miner 
George Junior Hamner wrote to his wife and daughter (copy attached) 
reveals that most miners survived the initial explosion at the Sago 
Mine. It also demonstrates that those miners had no information about 
where to find fresh air or about how they might have been able to exit 
the mine. In fact, miners survived for many hours, but in the end they 
had inadequate access to oxygen to survive the toxic mine atmosphere.
    Though Congress specifically suggested in 1969 that the Secretary 
consider promulgating a rule requiring rescue chambers for miners to 
find shelter in an emergency, we are unaware of any substantial efforts 
MSHA has made to pursue this option since the Act was written. 
Nevertheless, earlier this year just such a chamber was successfully 
used by, and saved the lives of, miners at a potash mine in Western 
Canada when they confronted a mine emergency. If they could rely on a 
rescue chamber to survive, why weren't the miners at Sago and Alma 
afforded that same opportunity?
    At the Alma mine, miners were killed after a mine fire erupted on 
the belt that was used to ventilate the mine. If belt air had not been 
permitted, and if the belts were not flammable, or if the miners had 
more oxygen, or if they had lifelines to guide them out of the smoke-
filled mine, perhaps we would have had a different outcome.
    These deficiencies in miners' health and safety are all ones MSHA 
has known about for many, many years. Most of them have been known 
since the Coal Act was passed in 1968, over 37 years ago. In fact, in 
1968 rescuers could not locate all the miners killed in the Farmington 
disaster and 19 remain entombed in that mine. The problems of no 
communications, the inability to locate underground miners, and 
insufficient self-rescuers were all noted as problems that confronted 
miners, including the 13 who were killed at the Jim Walters No. 5 mine 
on September 23, 2001. The need for these improvements has been talked 
about after too many tragedies. Long ago, it was time to stop talking 
and time to take action to implement changes that would help miners 
survive emergencies.
    We do not have to wait for 100% guarantees; we need to enhance a 
miner's chance of escaping an emergency, or surviving if trapped. Much 
technology is already available that would help miners survive a 
disaster like what confronted the miners at Sago and Alma. More oxygen, 
better communications, and the ability to locate the trapped miners--
these improvements may well have made a critical difference in those 
emergency situations.
    It is interesting that those advocating the status quo will say 
that some of the protections we seek, like supplemental oxygen, and 
better communications, are not worth pursuing because they may be 
damaged in the event of an explosion or other emergency. However, if 
the miners survive that initial event, they may well be able to escape 
or survive if they are provided additional resources. At the Sago Mine, 
miners survived for many hours and may well have been able to escape if 
they had been directed out; or they might have survived if they had 
supplemental oxygen stored nearby. At the Jim Walters mine, those 
killed had inadequate information largely because the primary method of 
communication was interrupted; if secondary communications (i.e., 
supplemental wireless devices) had been available, it is possible more 
would have survived. Shouldn't they be given their best chance of 
surviving?
    Experience demonstrates that unless MSHA requires operators to 
provide these protections, most miners will not have them available 
when the next emergency will strike. Since the devastating coal mining 
tragedies of 2006 captured the nation's attention, a number of 
manufacturers of various technologies and others from various 
backgrounds have submitted information about various devices, and 
suggestions about techniques that might be able to help miners survive 
an emergency. I know I have received a number of interesting proposals, 
and that MSHA has received many more in response to its request for 
such information. While the UMWA supports MSHA's action to undertake a 
review of such information and technologies, why didn't the Agency do 
this decades ago? Why do we have to have a discussion about such simple 
solutions as more oxygen and the ability to locate miners underground 
in the 21st Century?
    Active miners and family members of those killed at the Jim 
Walters' mine testified about the need for better communications, the 
need to be able to locate miners underground, and the need for more 
oxygen supplies stored underground, during a series of hearings that 
MSHA conducted in February, 2003. Transcripts from those hearings are 
available through MSHA's web page. What came from all those good 
suggestions? Nothing. Sadly, it came as no surprise to me when these 
very same problems and deficiencies confronted miners trapped in the 
Sago and Alma No. 1 mines; MSHA had not advanced any such protections 
in the intervening years.
    In fact, MSHA has been going backwards in providing some of these 
protections. Assistant Secretary for MSHA David Lauriski scrapped 17 
proposed rules on topics MSHA had identified as needing attention. I 
attach a list of those withdrawn rules. Among them were some of the 
protections that might have helped the miners who perished at Sago and 
Alma. Offering no explanation for its decision, on September 24, 2001 
MSHA withdrew a rule that would have imposed new procedures and 
requirements for flame-resistant conveyor belts, even though the rule 
was then close to completion. On that same day, citing ``resource 
constraints and changing safety and health regulatory priorities,'' 
MSHA withdrew its ``pre-rule'' concerning self-rescuers that had been 
among the Agency's rulemaking agenda since 1999.\1\
---------------------------------------------------------------------------
    \1\ Throughout the industry there have been problems with miners 
not being able to properly don the self-rescuer units in emergency 
situations. Moreover, without a rule addressing self-rescuers, 
technological advances of these breathing devices has been stymied. In 
the legislative history of the Mine Act, Congress indicated that mining 
regulations should be technology-driving, to maximize miners' 
protections. We had hoped that with the promulgation of a new rule 
addressing self-rescuers, the existing problems would be addressed, and 
technological advances encouraged. The UMWA is convinced that such a 
rule would have been the catalyst for a new generation of self-rescuer 
devices. While operators are willing to invest in new technology when 
it increases production, it appears that they are not so willing to 
invest when in miners' health and safety.
    We note that reports of the recent coal mine disaster in Mexico 
indicated that miners had access to at least six hours of oxygen, and 
there were additional units available underground. If so, their oxygen 
resources far exceeded what must be provided to miners in this country.
---------------------------------------------------------------------------
    One year later, MSHA withdrew a pre-rule that would have addressed 
problems related to diminishing mine rescue capabilities.\2\ The mine 
rescue system needs MSHA's attention. It is time for MSHA to promulgate 
rules that would compel the expansion of mine rescue capabilities, and 
require mine rescue teams at each and every mine, regardless of the 
mine size or location.
---------------------------------------------------------------------------
    \2\ It took from three to five hours for the first rescue teams to 
arrive at Sago. That mine does not have its own rescue teams, even 
though MSHA regulations require mines to ``establish at least two mine 
rescue teams which are available at all times when miners are 
underground, or * * * [make an arrangement] for mine rescue services 
which assures that at least two mine rescue teams are available at all 
times when miners are underground.'' 30 CFR Sec. 49.2. (The regulation 
includes an exception for small and remote mines, but does not apply to 
the Sago mine.) That same regulation specifies that teams ``shall be 
considered available where teams are capable presenting themselves at 
the mine site(s) within a reasonable time after notification. * * *'' 
Id. Given that it took three to five hours for the first mine rescue 
teams to arrive at Sago, it is apparent that the current system is not 
acceptable.
    The UMWA submits that every underground coal mine should have mine 
rescue capabilities on site. These team members should be employees at 
the facility who would be acutely familiar with the mine. These 
individuals would not only be best able to carry out many of the duties 
required in these situations, but would also be uniquely qualified to 
brief additional offsite teams that may be necessary to complete the 
rescue. For even small and remote mines, MSHA should require mine 
rescue teams to be ready when disasters strike. No trapped miners 
should ever again have to wait three to five hours for rescue efforts 
to begin.
    Instead of promulgating a rule that would improve rescue teams' 
availability and capabilities, MSHA eliminated further work on rescue 
teams regulations. Meanwhile, it permits operators to expand on the 
ill-advised practice of contracting out such work. Withdrawing the 
proposed rule effectively eliminated any meaningful improvement in 
comprehensive mine rescue activity, but it also afforded some mine 
operators the opportunity to disband teams so they could increase their 
profits.
---------------------------------------------------------------------------
    This current administration also withdrew a number of other rules 
that were at various stages of the rulemaking process. Some of the most 
compelling ones concern air quality, miners' exposure to airborne 
contaminants, and coal dust. The existing regulations utilize the same 
permissible exposure limits (``PELs'') that were in place when the Mine 
Act was promulgated in 1977; even MSHA recognizes them to be outdated 
and inadequate to protect miners' health. MSHA had planned to update 
them; instead the Agency withdrew its proposed rule in September 2002.
    Another proposed rule would have enacted recommendations emanating 
from the Secretary's 1996 Advisory Committee on the Elimination of 
Pneumoconiosis Among Coal Workers. This rule would have decreased the 
amount of respirable coal dust to which coal miners may be exposed. 
Reducing the allowable respirable dust exposures would both diminish 
miners' likelihood of contracting black lung disease and it would also 
reduce the amount of explosive coal dust in the mine environment. This 
was in the pre-rule stage when MSHA withdrew it in September 2004. 
Unfortunately, the only efforts regarding coal dust that MSHA made 
under former Assistant-Secretary Lauriski was a proposal that would 
have allowed respirable dust levels to increase by four fold. After a 
public outcry, including from a number of Congressmen, Mr. Lauriski 
withdrew his ill-advised proposal.
    In September 2001, MSHA also withdrew a proposed rule that would 
have required the monitoring of respirable dust at all times. And MSHA 
stopped its plans to increase the required training and retraining of 
miners, even though the Agency identified this need back in 1998, and 
the UMWA has consistently asked for such increases because current 
requirements are inadequate.
    MSHA dropped rulemaking efforts the Agency began in January 2001 to 
establish uniform procedures for its accident investigations. Not 
having such procedures has frustrated the designated miners' 
representatives in their efforts to participate in the investigatory 
interviews that took place in connection with the Sago investigation. 
The UMWA has been excluded from all these interviews, even though a 
number of active miners as well as several family members of those 
killed have asked the UMWA to serve as their representative.
    MSHA knows how to do better. The Agency itself has performed 
countless internal reviews and self-analyses; the federal government's 
watchdog agency, the GAO, has given it direction, and the UMWA has 
communicated both formally and informally about how MSHA can and must 
do better.
    Only on the heels of so many coal mining disasters commanding 
national attention, has MSHA recently begun to initiate some 
potentially useful rulemaking that could improve a trapped miner's 
ability to survive a mine accident. MSHA has announced plans to 
implement an emergency rule that would require more oxygen, lifelines, 
and the requirement that an operator provide MSHA with notice of a mine 
emergency within 15 minutes of the event. These efforts are important 
and we support MSHA in pursuing them to a quick resolution. The Agency 
has also solicited information about wireless technology for 
communicating with and locating underground miners. These are all very 
worthwhile.
    But we must ask, why did MSHA wait this long to pursue these 
issues? Why wasn't it looking for these solutions ten and twenty (or 
more) years ago? For an agency with such a clear mandate as that which 
Congress wrote into the Mine Act--to protect and improve miners' health 
and safety, we ask you to consider how MSHA could have gotten so 
terribly misdirected.
    MSHA has been neither aggressive nor consistent in enforcing the 
regulations that already exist. It spends too much effort at 
``compliance assistance,'' and too little on enforcement.
    After MSHA completed its investigation into the Jim Walters 
disaster, the Agency also performed an Internal Review of MSHA's 
actions before the explosions to ``improve our inspection process to 
better protect our nation's miners.'' The review compared what MSHA 
actually did with what the Mine Act requires it to do. A number of 
problems were identified as deficiencies ``at both the district and 
headquarters level'', deficiencies ``relevant to inspection procedures, 
level of enforcement, plan reviews, the [Alternative Case Resolution 
Initiative] and accountability programs, supervision and management, 
and headquarters oversight.'' The GAO also noted in a report issued in 
September 2003, when it investigated MSHA after the Jim Walters 
accident, that MSHA headquarters was not performing adequately in 
several key areas. Specifically, the GAO found MSHA failed to ensure 
violations cited to mine operators were corrected in a timely fashion. 
In fact, GAO found that of all the citations issued by the Agency, 
including those written as ``significant and substantial,'' despite 
inspector-imposed deadlines by which problems were to be abated, 48% of 
the time the Agency failed to follow-up in a timely fashion to see if 
the operator fixed the hazards.
    Unfortunately the Agency's top managers have done little to move 
any of the necessary improvements from recommendation to reality. We 
hope that by having Congress add its voice now, along with the public's 
demand for its better performance on the heels of Sago, Alma, and the 
other tragic accidents, MSHA will finally refocus its attention.
    In addition to the subjects that are already underway for emergency 
rulemaking (more self-rescuers and training on transferring units, 
lifelines to help miners evacuate the mine, and the need to notify MSHA 
of an emergency within 15 minutes), and subjects that MSHA is also 
actively studying (emergency communications and tracking systems)--all 
of which are long over-due for regulation--we urge MSHA to promulgate 
and implement rules that would materially contribute to miners' health 
and safety. Without intending to be comprehensive, the issues that we 
identify as constituting the top priorities for MSHA rulemaking 
include: reducing miners' exposure to respirable (coal) dust, updating 
permissible exposure limits for contaminants in the mine environment; 
undoing the unwise belt air rule, and requiring non-flammable belts, 
improved atmospheric monitoring systems, expanding the mine rescue team 
requirements and support, improving requirements for firefighting and 
evacuation plans, developing a nationwide emergency communications' 
system for mines, increasing training and retraining for miners, 
revising MSHA's approval and certification system for mining equipment, 
requiring secondary telephone lines in a separate entry, providing 
miners with a safer means of escape in the event of a mine fire, 
explosion, or inundation, updating and increasing fines for Mine Act 
violations, and developing uniform accident investigation procedures. 
MSHA should also determine whether the seals it approves are adequate 
(note that MSHA-approved seals failed at Alma although 30 USC Section 
303(z) of the Mine Act requires explosion-proof seals, and 30 CFR 
Section 75.334 and .335 provides that seals must withstand 20 psi); the 
Agency also should study emergency safety chambers, as suggested in the 
Mine Act, at 30 USC Section 315.
    MSHA needs a larger budget for coal enforcement. Aside from its 
budget not keeping apace with inflation, instead of focusing on 
enforcement, in recent years MSHA has redirected some of its 
inspectors' time towards ``compliance assistance.'' MSHA also needs to 
bolster its expertise, and prepare for the transition as many of its 
inspectors approach retirement.
    MSHA also has been remiss in enforcing the penalties it imposes for 
Mine Act violations. A fundamental problem is that MSHA compromises 
penalties far too often; whether at conferences held with the operator 
at MSHA's district offices or through negotiated settlements, MSHA 
collects very little in the way of the fines it assesses. This means 
that operators have little incentive to pay. There has developed a 
culture whereby operators view MSHA fines as little more than a 
nuisance, a minor cost of doing business. MSHA can and must do better 
to ensure that its fines coerce compliance with the Mine Act--that is 
what is most needed.
    Just last month, in February 2006, MSHA initiated two injunctive 
actions against operators with large unpaid fines. This was the first 
time the Agency attempted such remedies. While we support these 
efforts, we also must ask, why has it taken this long for MSHA to put 
teeth into the enforcement side?
    Coal remains a vital part of our nation's economy and a primary 
component of our energy needs. The industry is growing, and for the 
first time in decades, there are now many young coal miners. This is 
means there are many miners working with relatively little experience 
under their belts.
    Even with the recent spate of coal mining fatalities, I consider 
the industry lucky to not have suffered more injuries and deaths. This 
is because for too many years, the Agency has not been taking care of 
business. It has not been writing new rules to protect miners, and it 
has not been doing a good job enforcing the rules it already has.
    Mining is dangerous work. We need an Agency that takes seriously 
the first words Congress placed in the Mine Act: ``Congress declares 
that (a) the first priority of all in the coal or other mining industry 
must be the health and safety of its most precious resource--the 
miner.'' (30 U.S.C. Section 801.) We take that admonition seriously; 
everyone else associated with the mining industry must reestablish 
miners' health and safety as their top priority, too. Senseless deaths 
and injuries must stop.
    I urge you to require MSHA to do in 2006 all that Congress demanded 
in 1969 and again in 1977. Regulations that were in the pipeline in 
2001 and 2002 should be reactivated and finalized in a timely fashion. 
New regulations to protect miners--both while on the job and when 
emergencies strike--must be promulgated. All such regulations must be 
enforced regularly and aggressively.
    I thank you for your interest in miners' safety and would be happy 
to answer your questions.
                                 ______
                                 
    Chairman Norwood. Thank you, Mr. O'Dell.
    Mr. Watzman, you are now recognized for 5 minutes.

 STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY AND HEALTH 
        AND HUMAN RESOURCES, NATIONAL MINING ASSOCIATION

    Mr. Watzman. Thank you, Mr. Chairman, for the opportunity 
to be here today. At the very outset, allow me to restate our 
shared support for the fundamental tenet of mine safety and 
health legislation. That is, our first priority and concern 
must be the safety and health of the miner.
    We appear before you today to pledge to work with you and 
others in the Congress to ensure that out of the recent 
tragedies will emerge greater cooperation in pursuit of safer 
mines.
    The mining industry has undergone significant 
transformation that continues at an astounding pace. Safety and 
health programs have advanced and have become embedded in the 
mining culture. And we continue to adopt new technologies that 
advance the complimentary goals of safety and productivity.
    Since the first oil embargo in the early 1970s, the coal 
industry has answered the call to provide more coal to meet the 
nation's energy needs while providing a safer work environment 
for our employees. Since 1970, coal production has increased 82 
percent and coal mine fatalities have decreased 93 percent.
    And today's reportable injury incident rate gives coal 
mining a lower rate than many other industries. No longer can 
coal mining be stereotyped as the most hazardous job in 
America. We take pride in these accomplishments, yet more can, 
must and will be done.
    Today I would like to discuss with you a threefold 
challenge. First, the principles we believe should guide our 
actions and policy makers based on our analysis of the partial 
information coming out of this year's tragic events.
    Second, the need to focus on accident prevention in a 
changed and changing mining industry. And third, modernizing 
MSHA's enforcement procedures to more accurately mirror actual 
conditions in the mines rather than inflexible adherence to 
somewhat outdated procedures.
    We have reviewed the publicly available information that 
has emerged from the events in West Virginia. In addition to 
the establishment of an independent commission, we have 
developed and offer for the subcommittee's consideration as it 
looks at ways to advance mine safety and health through 
legislation the following principles.
    First, ensuring development and introduction of ground-
penetrating communication and tracking technology. Improving 
emergency notification. Enhancing safety training and rescue 
capabilities. Providing a liability shield and indemnification 
for mine rescue activities. Ensuring that new requirements are 
accompanied by workable transitional time frames. Providing 
authority for mine operators to conduct mandatory substance 
abuse testing of all personnel at the mine. And providing 
incentives to help companies invest in equipment and training 
needed for enhanced mine safety and rescue capabilities.
    Beyond the specific guiding principles, we direct your 
attention to two overriding challenges. Today many coal mines 
present challenging geologic conditions.
    As mines access deeper reserves, the technologic 
limitations of historic control methodologies are readily 
apparent, presenting miners, mine operators and agency 
personnel with new and more difficult engineering challenges.
    To address these, we have initiated several partnerships 
with the National Institute for Occupational Safety and Health 
to examine new technologies to better protect miners' health. 
These partnerships have brought together experts to work on 
practical solutions to mine safety and health problems 
confronting the industry.
    I am pleased to report that the industry recently joined 
with NIOSH and others to form a partnership on mine emergency 
communications.
    The members of this subcommittee and the colleagues in the 
respective appropriations subcommittees are very aware of the 
need to maintain a vibrant and well funded mining research 
program with the NIOSH. Recent events underscore this need.
    The federal government has an important role to play in 
technology development in order to bring safer, newer 
technologies to a relatively small market for safety equipment. 
We urge your support to strengthen this vital government 
function.
    In addition, certain structural changes in our regulatory 
approach to mine safety are necessary. Key among them is the 
need for MSHA to conduct more focused inspections and enhance 
the quality of inspections. Many of our members who operate 
some of the safest mines in the country continue to have 
inspectors on site each and every day.
    The misperception exists that the mine act mandate for four 
inspections annually of an underground mine and two annually of 
a surface mine only translate to four and two visits annually. 
Nothing can be further from the truth.
    MSHA statistics show that a large underground mine can have 
more than 4,000 onsite inspection hours per year. This means 
the presence of two or three inspectors each and every day the 
mine operates.
    Flexibility in inspection procedures is central in 
achieving the resource allocation determinations that are vital 
for improving the agency's safety and health programs and the 
industry's performance.
    Mr. Chairman, as we look to the future, we recognize that 
our ability to further advance coal mine safety and health will 
require an examination of the structural and technologic 
hurdles that must be overcome.
    Further improvement will require us to identify potentially 
dangerous conditions before they put miners' safety and health 
in jeopardy, as well as the appropriate means to minimize those 
hazards. We look forward to working with you and the colleagues 
in the Congress as you consider legislation to address this.
    Working together, we will develop programs to train and 
educate a new generation of employees so that they can have a 
safe and productive career in an industry vital to the 
country's energy markets and national interest. Thank you.
    [The statement of Mr. Watzman follows:]

   Prepared Statement of Bruce Watzman, Vice President of Safety and 
                Health, the National Mining Association

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to appear before you again to review the activities of the 
Federal Mine Safety and Health Administration (MSHA), the federal role 
in mine safety, and training and current regulatory activity. At the 
very outset, allow me to restate our shared support for the fundamental 
tenet of federal mine safety and health legislation, that is--our first 
priority and concern must be the safety and health of the miner.
    We appear before you today to pledge to work with you and others in 
Congress to ensure that out of the recent tragedies will emerge a 
stronger resolve and greater cooperation in pursuit of safer mines. Our 
expectation is that from this and similar hearings and from the 
exhaustive official investigations now underway * * * we can do better 
what we've tried hard to do well.
Industry Safety Performance
    In order to consider what improvements are necessary to further 
advance miner safety and health, one must first review what has been 
achieved. Due to the tremendous commitment of all who work to provide a 
safe and healthy work environment for the men and women who work in our 
nation's mines, mining is a much safer occupation.
    The mining industry has undergone a significant transformation that 
continues at an astounding pace. Safety and health programs have 
advanced and have become embedded in the mining culture. New 
technologies and mining methods have reduced miners' exposure to 
harmful conditions, and the industry continues to adopt new 
technologies that advance the complimentary goals of safety and 
productivity.
    The coal mining industry takes seriously its commitment to protect 
its workforce. Since the first oil embargo in the early 1970s, the coal 
industry has been called upon to provide more coal to meet our nation's 
energy requirements. The industry has answered that call while 
providing a safer working environment for its workforce. Since 1970, 
coal production has increased by 83 percent, and coal mine fatalities 
have decreased by 92 percent.



    One need only look at 2004's safety record to recognize that the 
industry is moving in the right direction. Today's reportable injury 
incident rate of 5.6 per 100 workers gives coal mining a lower rate of 
occupational injuries than hospitals, manufacturing, nursing and 
residential care facilities among others. No longer can coal mining be 
stereotyped as the most hazardous job in America--a characterization 
often used by those unfamiliar with today's mining industry.



    Similar dramatic reductions have been accomplished across the 
entire mining industry both in terms of reductions in fatal injuries as 
well as the industry's lost-time injury rate. During the period 1990--
2004 fatalities declined 53 percent and injuries declined 52 percent. 
Again, progress with more work to be done.
    We take pride in all of these accomplishments. Yet, the events in 
West Virginia again illustrate the fragile nature of these 
accomplishments and the need for constant vigilance to sustain them. 
More can, must and will be done.





    Today, I'd like to discuss with you a three-fold challenge:
    First, the principles we believe should guide our actions and 
policy makers based on our analysis of the partial information coming 
out of this year's tragic events;
    Two, the need to focus on accident prevention in a changed and 
changing mining industry; and
    Three, a call to modernize MSHA's enforcement procedures to more 
accurately mirror actual conditions in the mines, rather than an 
inflexible adherence to outdated procedures.
Guiding Principles
    NMA has reviewed the publicly available information that has 
emerged from the events in West Virginia. In addition to the 
establishment of an independent commission of safety experts who will 
examine how technology and training procedures can be more readily 
adapted for use in our mines, our review has led to the development of 
a set of guiding principles that we offer for the Subcommittee's 
consideration as it looks for ways to advance mine safety and health. 
Those principles include:
     Expediting development and introduction of ground 
penetrating communication and tracking technology;
     Improving emergency notification;
     Enhancing safety training and rescue capabilities;
     Providing liability shield and indemnification for mine 
rescue activities;
     Ensuring new requirements are accompanied by workable 
transitional timeframes;
     Providing authority for mine operators to conduct 
mandatory substance abuse testing of all personnel at the mine; and
     Providing tax incentives to help companies invest in 
equipment and training needed for enhanced mine safety and rescue 
capabilities.

Mine Safety Commission Formed
    In pursuit of these principles and to ensure a focused and 
transparent effort, NMA shortly after the first mine accident announced 
the formation of a Mine Safety Technology and Training Commission. The 
commission is drawn from safety experts in academia, labor and industry 
for the purpose of examining safety technologies, emergency response 
and rescues procedures and training regimes that could significantly 
enhance safety and rescue conditions in our nation's underground coal 
mines. The commission is being chaired by a recognized expert in mine 
safety, Dr. R. Larry Grayson, chairman and professor of mining and 
nuclear engineering at the University of Missouri-Rolla. The 
Commission's first meeting will be held next Friday, March 10, and it 
will report its preliminary findings to the public and mine safety 
authorities by July 1, with a final report by the end of this year. We 
anticipate the commission will examine, among other items, the current 
and new promising technologies for mine communication, tracking miners' 
locations, rescue technology and methods to more readily and reliably 
detect potential safety hazards.
    Beyond the specific guiding principles discussed above, we direct 
your attention to two over-riding challenges.

Focus on Accident Prevention
    Today, many coal mines present challenging geologic conditions. As 
mines access deeper reserves, the technological limitations of historic 
control methodologies are readily apparent, presenting miners, mine 
operators and agency personnel with new and more difficult engineering 
challenges. To address these challenges miners and mine operators, 
alike, have initiated several partnerships with the MSHA and the 
National Institute for Occupational Safety and Health (NIOSH) to 
examine new technologies to better protect miners' health. These 
partnerships have brought together experts to work on practical 
solutions to safety and health problems confronting the industry. I'm 
pleased to report that the industry has joined with the NIOSH, MSHA, 
the United Mine Workers of America, and the State of West Virginia to 
form a partnership on Mine Emergency Communications.
    The work of these partnerships is still on-going, and our members 
continue to dedicate time and resources to this vital work. Our hope is 
lingering problems can be overcome through the development of new, 
mine-worthy engineering solutions. When based on sound science, this 
work can and will provide the basis for future rulemaking, if 
warranted. More importantly, however, the partnerships also reflect a 
new working dynamic that has evolved in the mining industry to advance 
miner safety and health.
    The members of this subcommittee and your colleagues on the 
respective appropriations subcommittee are very aware of the need to 
maintain a vibrant and well funded mining research program within the 
NIOSH. The tragic events in West Virginia underscore this need. The 
federal government has an important role in technology development--in 
order to bring safer, new devices to a relatively small market for 
safety equipment. We urge your support to strengthen this vital 
government function.

Modernize Our Regulatory Approach
    In addition, certain structural changes in our regulatory approach 
to mine safety are necessary.
    Key among them is the need for MSHA to overcome institutional 
barriers to change, including changes that prevent the agency's 
management from implementing new programs. No less than a paradigm 
shift is required for the manner in which the agency implements its 
legal requirements. The agency must conduct more focused inspections 
and enhance the quality of inspections through continued inspector 
training and education.
    In order to allocate its resources more effectively, we believe the 
agency must foster a more flexible inspection protocol while 
maintaining compliance with the inspection mandates of the Mine Act.
    Many of our members that operate some of the safest mines in the 
country continue to have inspectors on-site during each and every 
operating shift. In regions where mines have closed, inspector presence 
has, without cause, increased at operating mines. The misperception 
persists that the Mine Act's mandate of four inspections annually for 
every underground mine and two inspections annually for every surface 
coal mine translates to only four and two visits annually. Nothing can 
be further from the truth. MSHA statistics show that a large 
underground mine can have more than 4,000 on-site inspection hours per 
year. This means the presence of 2-3 inspectors each and every day the 
mine operates. With infinite resources, this wouldn't be a concern. But 
none of us have that luxury.
    As a result, flexibility in inspection procedures is central to 
achieving the resource allocation determinations that are vital for 
improving the agency's safety and health programs and the industry's 
safety and health performance. The Voluntary Protection Program (VPP), 
instituted by the Occupational Safety and Health Administration, has 
been a remarkable success in the non-mining sector. Introduction of a 
VPP for the mining industry is long overdue. We must overcome 
traditional barriers to reach new safety and health plateaus--and VPP 
is an important tool to achieve this goal. Mines with safety 
performance that exceeds stringent, verifiable safety goals should not 
be inspected with the same vigor as those that fail to meet such 
criteria. Continuing to mandate a minimum of rigid inspections, with no 
correlation to performance, will not help us further reduce the 
incident rate.
    Even with the changes that have been adopted, and the improvements 
that have been documented, more must be done. MSHA must redirect 
personnel and budgetary resources to ensuring safety improvements from 
mines with poor or unsatisfactory compliance records. We remain 
concerned that failure to implement, or delays in implementing required 
changes, may thwart the positive safety and health advances that are 
attained when the agency can allocate resources based upon need, rather 
than on historic geographic or political considerations.

The West Virginia Experience
    Mr. Chairman much attention has been focused on the response the 
expediency with which the West Virginia legislature passed legislation 
to address the actual and perceived shortcomings of safety practices. 
Following passage of that legislation emergency rules were promulgated 
that became the subject of discussion and debate. This week revised 
emergency rules are being issued that are significantly different than 
those initially published. Why is that? We would submit that once the 
expertise of industry, labor and all relevant government officials were 
utilized, a better solution was achieved without losing site of the 
general precepts of the initial legislation. Mr. Chairman, we would 
hope that the Congress will learn from that experience. We believe that 
the best way to improve mine safety is to pool the collective efforts 
of industry, labor and government to solve problems, without agendas.

Summary
    Today the mining industry and its dedicated mine safety and health 
professionals face challenges far different from those anticipated when 
the Mine Act was adopted. Difficult geological conditions, faster 
mining cycles and changes in the way work is conducted introduce 
potential complications that require the introduction of new and 
innovative responses.
    As we look to the future, we recognize that our ability to further 
advance coal mine safety and health will require an examination of the 
structural and technologic hurdles that must be overcome. It will 
require a commitment to identify and foster the development of 21st 
century technology that will perform effectively and reliably in the 
mining environment. Technologies such as the introduction of remote 
control miners, integrated methane monitors on mining equipment, 
atmospheric monitoring systems, and longwall mining systems are a few 
of the advances that have contributed to the industry's improved safety 
record. Advances in technology have been integral to our safety 
improvements thus far and will, we believe, contribute to further 
improvements in mine safety.
    Further improvement will require us to identify potentially 
dangerous conditions before they put miners' safety or health in 
jeopardy as well as the appropriate methods to minimize, to the degree 
possible, the onset of dangerous conditions and practices.
    Simply put, improved safety performance demands that both 
government and industry redirect resources toward the prevention of 
accidents, injuries and illnesses and away from business-as-usual 
policies that inevitably lead to unnecessary and unproductive 
confrontation.
    Mr. Chairman we look forward to working with you and your 
colleagues as the Congress considers legislation. Working together, we 
will develop programs to train and educate a new generation of 
employees so that they can have a safe and productive career in an 
industry vital to this country's energy markets and national interests.
    Thank you.
                                 ______
                                 
    Chairman Norwood. Thank you, Mr. Watzman.
    I will have to tell you that I do not think any of us up 
here are miners, but we are people who are desperately 
interested in the right policy for health and safety for 
miners, and so you will forgive us if we ask some questions, 
gentlemen, that may seem elementary to you, but we are in the 
process of very much trying to learn.
    And I would like to follow up--I recognize myself for 5 
minutes for questions. I would like to follow up just exactly 
on what you were saying, communications. I know a little bit 
about that. I know that I am told that presently a land line is 
what we use in mines to communicate with today, and that is not 
necessarily reliable, as recently we found out.
    A land line is used in many situations--in war--and often 
they get cut. So what we want to do is say okay, you must use 
proper communications so these men can talk to the surface. Is 
it out there?
    Yes, sir?
    Mr. Watzman. Yes and no, Congressman. There are systems out 
there, but the systems that exist today have limitations. What 
we ultimately, as an industry, would like to see----
    Chairman Norwood. Let me rephrase. Is it out there that 
will work----
    Mr. Watzman. No.
    Chairman Norwood [continuing]. Get the job done?
    Mr. Watzman. No. It is not today. What we want to see----
    Chairman Norwood. Under any feasible circumstance, we can 
rely on these folks to be able to talk to the surface and the 
surface back to them?
    Mr. Watzman. The systems that are in place today in use in 
the U.S. rely, for the most part, on some installations of 
underground hardware to support that technology. That 
underground hardware can get damaged in an explosion or fire. 
We do not have today true uninterruptible, ground-penetrating, 
two-way communication systems.
    Chairman Norwood. Mr. Friend, we sat right down there in 
Houston, and we talked of astronauts on the moon. Now, why in 
the dickens can't we talk to the men underground and them talk 
to us?
    You are having a session coming up, I understand, to--let's 
review all of the technology, is that what is going on?
    Mr. Friend. Currently, as I mentioned in my statement, the 
meeting on the 13th--that is the subject. However, we do have 
someone in Australia this week examining some of the technology 
that already exists.
    Chairman Norwood. That is a one-way technology?
    Mr. Friend. That is a one-way. We need a two-way 
communication system.
    Chairman Norwood. That is right. Now, what do we need to do 
to get to that?
    Mr. Friend. I think we need to create the market. I mean, I 
think if the market is there, probably the manufacturers will 
step up. We are investigating all of that right now. We are 
looking at what is available, what can be done.
    We are talking to the Department of Defense and everybody 
we can consult with to see if the technology exists and what it 
would take to drive it. We are----
    Chairman Norwood. We should talk to NASA and get them to 
figure this out for us. There is no reason we cannot get that 
done, I do not believe.
    Mr. Friend. Well, there is a lot of ground over some of our 
mines. Some of them are extra deep, and without hardware in the 
mine itself, it is difficult to go through that much ground, 
that much cover.
    Chairman Norwood. Mr. McKinney, help me understand a little 
bit about belt air systems. I mean, I understand--I mean, the 
way I would envision it, there is a conveyor belt that goes to 
the bottom of the mine, and we are hooking a tube onto that, 
where we can put air into the face of the mine for the purpose 
of helping have a cooler environment plus remove methane gas. 
Is that what a belt air system is?
    Mr. McKinney. Not exactly. We have dedicated entries that 
actually channel fresh air to the faces.
    Chairman Norwood. You have to do that--no matter what else, 
you still have to do dedicated entries, right?
    Mr. McKinney. Yes, sir. And as a normal rule, those are 
separated from the belt entry because of some issues associated 
with belt drives and things like that.
    Over the last 20 years we have petitions and modification 
which are the mechanism we have to look at alternate ways of 
complying with requirements in the regulations. And those 
petitions allowed people to actually take the air that 
ventilates the belt line, the conveyor belt line, into the face 
area.
    It is done for a couple of different reasons. In some 
mines, you have a lot of ground control problems. You have 
3,000 feet, 4,000 feet of cover. They cannot drive multiple 
entries in order to have the intake air courses, so they 
utilize the belt entry to take air into the face area.
    When that happens, we have----
    Chairman Norwood. Well, may I? Excuse me. I cannot figure 
out why employers want to do that and the miners do not want to 
do that. That is confusing to me.
    Mr. McKinney. Well, I think sometimes----
    Chairman Norwood. I mean, doesn't it help?
    Mr. McKinney. I will try to--I think sometimes it does get 
confusing for folks. With belt air, there are some things that 
you have to have safeguards in place, and we do that. We have 
atmospheric monitoring systems that we place along the belt 
line to give early warnings to miners on the section and on the 
surface.
    There is someone that stays on the surface at all times 
that looks at that. There is an alert level, like it could be 
set at five parts per million of carbon monoxide. At that alert 
level, you notify people that there is an occurrence ongoing.
    There is an alarm level where we bring people out of the 
coal mine. So there is built-in safeguards when we use belt air 
in the face.
    I think we have to be cautious--I heard a statement a 
moment ago about what occurred at Alma. I think we have to be 
cautious about prematurely jumping to conclusions on this until 
we find out exactly what occurred there.
    I was at Alma during the recovery operation, and from what 
I have seen on the front end, belt air was not allowed to be 
used on the two section legally. So I think we need to find out 
exactly what the situation was there before we jump to 
conclusions.
    Chairman Norwood. Well, the 1977 law says you cannot use 
belt air, am I right about that?
    Mr. McKinney. That is exactly correct. And there is a 
petition and modification process that allows you to offset a 
regulation if you put safeguards in place. As that happened 
through the course of industry and we looked at those 
petitions, more and more mines, almost 100 petitions, are out 
there where people were using belt air in the face through the 
petition process.
    We did not see occurrences that caused us to believe that 
that was an unsafe practice, so that is why the rule was put in 
place.
    Chairman Norwood. Probably need to ask the boys and girls 
down at the bottom of the mine how they feel about it.
    My time, I see, has gone.
    Mr. Owens. Mr. Chairman, we have the ranking member.
    Chairman Norwood. The ranking member here?
    Mr. Owens. I would like to yield to him for----
    Chairman Norwood. Mr. Miller, you are recognized for 5 
minutes.
    Mr. Miller. Thank you, Mr. Chairman. And thank you for 
holding this hearing.
    And Major Owens, thank you for yielding to me.
    First, Mr. Chairman, I would like to ask unanimous consent 
to insert my opening statement in the record.
    [The prepared statement of Mr. Miller follows:]

  Prepared Statement of Hon. George Miller, Ranking Minority Member, 
                Committee on Education and the Workforce

    Mr. Chairman, I am very pleased that you are holding this hearing 
today. I hope it will be the beginning of our efforts to address this 
mine safety crisis, and not the end. And let's be clear--this is a 
crisis. Twenty-one coal miners have died in the first two months of 
2006, only one fewer than the total number of coal miners who died in 
all of 2005.
    Our goal should be to reduce the number of mining deaths to zero. 
We will not make progress toward that goal if we continue down the path 
the Bush Administration is on. This Administration has not only failed 
to make the safety and health of mine workers a priority, it has also 
undermined the mine safety program through regulatory roll backs, 
budget cuts, and unqualified leadership.
    The President has filled the top political positions at the Mine 
Safety and Health Administration with former mining executives. Those 
executives have begun to act, predictably, in the interests of their 
friends in the industry, not of the mineworkers. I recently issued a 
report that showed that the Bush MSHA has delayed, weakened, or 
scrapped 18 regulations intended to protect mine workers, while 
adopting one rule that clearly would make them less safe.
    This Administration has ignored the requirement of the law that no 
new standard be less protective than an existing standard. Instead of 
implementing a critical rule that would have gone into effect this 
January to help reduce the risk to underground metal and nonmetal 
miners of lung cancer, this Administration instead proposed to delay 
implementation for five years. Indeed, it claims this approach is 
equally as protective in putting the rule into effect promptly!
    The Bush MSHA has also shifted from a focus on enforcing the law to 
a focus on so-called ``compliance assistance.'' Compliance assistance 
is a fine approach to take with responsible mine operators, of which 
there are many. But the Sago Mine's owners failed to rectify serious 
repeated violations of the law in 2005. Its owners were interested in 
maximizing their profits, not complying with safety laws. Scofflaws 
like that only understand one thing: money. They will only comply with 
the laws when failing to do so means losing a lot of money.
    The Bush Administration has also cut MSHA's funding every year 
since 2001. As a result, there is funding for 190 fewer coal 
enforcement personnel now than there was when the Bush Administration 
took office. This year, even after the horrors at Sago and Aracoma 
Alma, the Administration refused to request funding to pay for more 
enforcement personnel.
    As with FEMA, when it comes to mine safety, the Bush Administration 
has failed in its most basic responsibility. And this Congress has 
failed to hold the Administration accountable. This is the first 
oversight hearing on worker safety in five years--five years. That is 
an inexcusable record of neglect.
    There are a number of steps the Bush Administration must take to 
improve mine safety, and it is Congress' responsibility to make sure it 
takes them.
    For starters, the Bush Administration has an obligation to stop 
shutting the public out of decision making processes and actions that 
affect mine safety. For this reason, Democrats have asked the 
Administration to open up all of its records, including inspectors' 
notes, to public scrutiny. It has begun to do so. We have also asked 
MSHA to hold a public hearing on the Sago accident, and it should do so 
immediately.
    Next, the Bush Administration must immediately use the authority it 
already has to enforce the law to make mines safer. This means 
immediately implementing commonsense rules that we know would protect 
the lives of mine workers and could have affected the outcomes of the 
tragedies we have seen this year. It also means punishing scofflaw mine 
operators with meaningful fines that will force them to change their 
bad behavior, not letting them off easy with paltry fines--lower than 
the cost of a speeding ticket--that can simply be written off as just 
another cost of doing business. MSHA has said it will look at the fine 
structure, and that is a positive step. But it has not provided any 
timetable for doing so, and it should.
    Finally--and this is an issue we have heard repeatedly from miners 
and their family members--MSHA must move more quickly to adopt new 
technologies to improve the safety and communications capabilities of 
mine workers. Communications and tracking devices are a prime example 
of technological advancements that could have saved the lives of many 
of the miners who have died last month at the Sago Mine. In an age 
where communications technology is rapidly advancing, it is beyond 
shocking that basic communications and tracking devices are not 
required safety protocol in mines.
    Last month, Democrats convened a forum on mine safety to give 
miners' and miners' families a chance to make their voices heard on 
Capitol Hill. We heard from seven people--sons, daughters, and wives--
who had lost loved ones in mining accidents in Alabama and West 
Virginia.
    One of those witnesses was Amber Helms. She was only 23 years old, 
but she made a smart and eloquent statement that would make any father 
proud. Her father, Terry Helms, died in the explosion at the Sago Mine. 
Amber talked about how generous and caring her father was, and how he 
was her best friend. She asked why more wasn't being done to keep 
miners safe, and she questioned the lack of proper equipment for miners 
when she said:
    ``Yet these men work as we speak--right now today there are men 
underground working in conditions and with equipment that are so 
outdated--I mean, it's ridiculous that I can get a computer and I can 
make a full Web site in an hour and have it up and running so the whole 
world can see it, but no one can find my dad or no one can track these 
men. In Australia, they have tracking devices that cost as little as 
$20. What's $20 to a company?''
    Industry executives will argue that this technology is not yet 
perfected, and therefore is too risky to equip mine workers with. But 
even if these tools had worked properly only half of the time, lives 
would have been saved, and serious, life-threatening injuries would 
have been prevented. There is too much hanging in the ballots here to 
hold out for perfection. As Amber said, ``The technology is out 
there.''
    This Congress has been blind to the need to maintain even the 
protections that already exist under the law. It wasn't long ago that 
some members of our committee, including its former chairman, were 
actively seeking legislation to abolish MSHA and NIOSH and to cut back 
critical enforcement provisions.
    Under that legislation, three out of the four mandatory annual 
inspections at every underground mine would have been eliminated. 
Inspectors would have needed a warrant before entering mine property. 
Only miners in unionized mines would have had the right to accompany 
inspectors as they examined the mine. The circumstances in which an 
inspector could shut down an unsafe section of a mine would have been 
restricted. Mine operators would not have had to pay fines for typical 
citations as long as the hazards were abated. And on and on.
    That legislation was defeated. But that apparently hasn't deterred 
Administration officials from trying to gut MSHA anyway. Now they're 
just dismantling it and taking it out the back door, where they think 
no one is watching. Well, we are watching. Legislation must be enacted 
to ensure that changes are made, changes that make the safety and 
health of these mine workers a priority, and that prevent the industry 
from being allowed to get away with further abuses.
    I want to commend Congressman Nick Rahall and his West Virginia 
colleagues for their prompt hearings and action on these issues. On 
February 1, they introduced H.R. 4695, the ``Federal Mine Safety and 
Health Act of 2006,'' which enhances and reinforces the original 
purpose of the landmark Federal Coal Mine Health and Safety Act of 
1969, as amended by the Federal Mine Safety and Health Act of 1977. 
This legislation is a vital step in this process, and an effort that I 
am hoping will be a catalyst for change.
    Amber's testimony, and the powerful and courageous testimony 
provided by all the witnesses at the forum, is documented for all to 
see. I strongly urge all members of this subcommittee to watch the 
footage of the forum, and the incredibly important questions posed by 
these witnesses, questions that have not been answered--not by the 
Administration, and not by MSHA.
    As Amber said: ``I understand that nothing that I say today or 
nothing that happens in the future is going to bring my dad back. But 
my uncle Johnny, my uncle Mike, my cousin Rocky, as well as every other 
miner that is underground and every other son who's getting ready to go 
into the coal mines--because that's where the jobs are in West Virginia 
and maybe some of these other states--we can prevent their families 
from going through this.''
    We owe it to Amber and every other American who has lost a loved 
one in a mining accident to learn what more we can do to make mines 
safer. And then, just as Amber says, we must take action to prevent 
more families from going through the hell that she has had to go 
through.
    Thank you, Mr. Chairman.
                                 ______
                                 
    And I would also, Mr. Chairman, like to ask unanimous 
consent that the transcript of the forum that we held with 
miners' families, the victims of the Sago and Aracoma mine 
disaster--that the transcript of that hearing be made part of 
this record.
    Chairman Norwood [continuing]. To have an opportunity to 
look at that.
    Mr. Miller. I would be more than happy if you would read 
this record of what these families had to say to us. That would 
make my day, and I would hope that it would be made part of 
this record. So I renew my request.
    If I might, Mr. Friend, what were we doing about 
communications before this mining disaster?
    Mr. Friend. Underground communications? We had a hardwired 
system in the underground mines.
    Mr. Miller. No, but what are the agencies doing about 
looking at this in terms of modernization, new technologies? As 
the chairman has pointed out, people see us talking light years 
into space, and they do not see us talking into a mine.
    Mr. Friend. Two communications systems that have received a 
lot of attention of late are the TRACKER, so-called TRACKER, 
and the PED System. Our technical support group has evaluated 
those in the past, as they are mandated to do because of 
permissibility.
    So those two systems are approved, and that is when it came 
to our attention, and we started looking at it.
    Mr. Miller. That was when?
    Mr. Friend. I do not know when they received their 
approval. I can get you----
    Mr. Miller. Does anybody at the table know when their 
approval was handed out?
    Mr. Friend. We can get you that information.
    Mr. Miller. But I mean, nothing was done to provide for any 
requirement of this kind of communication system in the mine or 
tracking system.
    Mr. Friend. That is correct.
    Mr. Miller. So up until this disaster, then, on the 25th 
you put out a request for some information, according to your 
testimony, is that correct?
    Mr. Friend. In January, I believe.
    Mr. Miller. Mr. O'Dell?
    Mr. O'Dell. Yes, I would like to speak specifically to the 
tracking equipment.
    Mr. Miller. Quickly, if you can.
    Mr. O'Dell. In 1968, when the Farmington No. 9 mine blew up 
and killed 78 miners, the then Bureau of Mines was directed to 
come up with tracking devices to locate miners.
    In 1970, the Bureau of Mines developed a system, an 
electromagnetic tracking system, that was proved to work as 
deep as 4,000 feet coverage. And it was approved and tested, 
and it passed all those things that needed to be passed to 
locate miners.
    To this day, that system has sat on a shelf somewhere 
collecting dust. And following up on that, in 1975----
    Mr. Miller. Mr. Friend, is that accurate?
    Mr. Friend. I have no knowledge of it.
    Mr. Miller. Well, I mean, I find it kind of stunning in the 
testimony. Apparently, nobody had any knowledge of this until 
we had this disaster. Now everybody says it is available, says 
it is in use in some cases in the United States and apparently 
in Australia, and now we are asking for a request for 
information on this.
    And yet you put this coalition together in West Virginia 
and they pass the law, and I think it is going to be done in 90 
days. Is that accurate? Is that correct?
    Mr. McKinney. I did not hear what you said. My 
understanding is that part of that regulation's been delayed 
until they could see if the technology is there.
    You are right about the regulation being passed, but I 
think I read where the governor has delayed the implementation 
of the communications----
    Mr. Miller. Is that correct?
    Mr. Watzman, is that correct?
    Mr. Watzman. That is correct. In fact, we are told that 
today revised emergency rules are being announced by the 
governor to reflect what Mr. McKinney just said.
    Mr. Miller. And that would do what?
    Mr. Watzman. It will delay the implementation of those to 
allow time for an examination to make sure the technology meets 
the objectives that have been outlined in the legislation.
    Mr. Miller. Has the agency ever conducted any experiments 
on any of these systems? I mean, you know, I assume that there 
is journals of mining, there is journals of mining safety. 
People keep up to speed in the health sciences and education.
    Do you keep up to speed? Do you try these things in the 
mines? Has the association tried----
    Mr. Watzman. Mr. Miller, one of the problems we have, as I 
alluded to in my testimony, is that there are 634 underground 
coal mines in this country. We are not a big market----
    Mr. Miller. I am asking you have you tried any of these. 
Have you gone to a manufacturer and said we would like to see 
if this works in a 4,000-foot-deep mine?
    Mr. Watzman. Many technologies have been tried. Others have 
not, because there are not manufacturers who have developed 
these. What Mr. O'Dell referred to was research done by a 
government agency. I am not aware of any manufacturer that then 
took that information and brought a product to market.
    Mr. Miller. Mr. Friend, in your testimony, you praised, and 
properly so, the rescue teams that were engaged in the rescues 
after the events at these two mines.
    And yet we have seen a number of those teams go down and a 
number of people being trained for those teams continue to go 
down, and regulations were withdrawn that would have required 
to have a couple of teams at each mine.
    So nothing was done since those regulations have been 
withdrawn? I mean, it took 5 hours for people to get the rescue 
teams to be put in place at Sago.
    Mr. McKinney. I think if you look closely at those 
regulations that were withdrawn----
    Mr. Miller. Are you answering for Mr. Friend?
    Mr. Friend. Oh, was the question directed to me, sir?
    Mr. Miller. Yes. Hello, Mr. Friend. You are in this room. 
Do you want to listen for a minute?
    Mr. Friend. Sure.
    Chairman Norwood. Be nice.
    Mr. Miller. Be nice? This is the third time he says I--you 
know, he is in some other place.
    Mr. Friend. Well, you know, I spent a few years in the 
mining industry, and my hearing is not quite what it should be.
    Mr. Miller. Well, then say so, and we will----
    Mr. Friend. I apologize for that.
    Mr. Miller [continuing]. Be happy to work with that. So 
what is the answer? The question is what has been done since 
the regulation was withdrawn that would have required a couple 
of trained teams at each mine. What has been done since then?
    As I look at the figures, both the number of teams and the 
training provided has continued to go down.
    Mr. Friend. The regulations allow mining companies to 
contract their mine rescue services. That is in the regs. Most 
of the large mines have their own teams. And in that respect, 
we have not done anything to change the numbers because they 
are all in compliance with the regulations.
    Mr. Miller. So you are not suggesting to me that there is a 
qualified rescue team readily available at each and every mine.
    Mr. Friend. Yes, within a 2-hour travel time, which is what 
the regulation requires.
    Mr. Miller. How come it took 5 hours?
    Mr. Friend. Two hours travel time.
    Mr. Miller. Well, why was it 5 hours in this case?
    Mr. Friend. Well, I was not there that day, but we did not 
receive notice until 2 hours after the incident. We were on the 
property 4 hours after that. I do not know when the first team 
got there.
    Mr. Miller. Are you addressing the rescue team issue, or 
you do not think it needs to be addressed? It is nowhere in 
your testimony.
    Mr. Friend. That is part of the request for information. 
Also, with the state of West Virginia we are having a co-
meeting along with NIOSH to discuss technologies, 
communications, rescue, all of it.
    Mr. Miller. This is a real busy agency since this disaster.
    Mr. Friend. Well, we have had a remarkable record up until 
this January, and I do not think anyone can dispute that, in 
accordance with the numbers.
    Mr. Miller. But you do not engage--I mean, you do not 
engage in some kind of constant, continuous improvement around 
these critical issues of in-mine safety, of rescue safety, of 
communications? This isn't an ongoing effort?
    Mr. Friend. Absolutely. But I do not think anyone in this 
room knows the root causes of Alma or the Sago Mine accident.
    Mr. Miller. This is about just dealing with the event. You 
know, listen, we are very happy with the record, but it is not 
to suggest that we have erased the events. Mine rescue deals 
with an event taking place. Communications deals with an event 
taking place.
    I assume that there is some effort to constantly update our 
ability to respond to events, but apparently there is not. It 
has all sort of happened since January 9th.
    Mr. Friend. We are taking a look at that.
    Chairman Norwood. Thank you, Mr. Miller. You are into Mr. 
Owens' time.
    Would you restate you request, please?
    Mr. Miller. I asked unanimous consent that the transcript 
of the February 13th hearing that we had with the families of 
the miners who lost their lives in the mine could be made part 
of the transcript of this record.
    Chairman Norwood. That is so ordered.
    Mr. McKeon. Would the gentleman yield?
    Mr. Miller. Thank you.
    Mr. McKeon. Would the gentleman yield?
    Mr. Owens. Yes, sir.
    Chairman Norwood. Mr. Chairman, yes.
    Mr. McKeon. Good to see you.
    Chairman Norwood. Good to see you.
    Mr. McKeon. It was not a hearing. It was a forum held by 
the minority.
    Mr. Miller. Correct.
    Mr. McKeon. And that will be so stated in the record.*
---------------------------------------------------------------------------
    *Submitted and placed in permanent archive file, Democratic Members 
of the House Education and the Workforce Committee, Forum on Mine 
Safety (Political Transcripts, CQ Transcriptions, Inc.) (February 13, 
2006).
---------------------------------------------------------------------------
    Mr. Miller. Yes.
    Mr. McKeon. Just for that clarification.
    Mr. Miller. We get carried away and think it is a hearing 
every now and then, Mr. Chairman. You know how it is. But we 
were listening, Mr. Chairman.
    Chairman Norwood. We are going to make sure it is not.
    Dr. Price, you are now recognized for questioning for 5 
minutes.
    Mr. Price. Thank you, Mr. Chairman. I appreciate you 
holding this meeting and appreciate the information that has 
been delivered. I would also request and just reiterate what 
you said early on that sober, deliberate, calm discussion of 
this is the way that we get to solutions, I believe, and would 
encourage that from all.
    I want to thank the miners who are here, and please convey 
to your brothers and sisters in your work that I believe and we 
believe you are on the front lines of our energy independence, 
and thank you for the work that you do.
    I want to also thank MSHA and those folks who have 
demonstrated clearly a decrease in mine incidents and 
fatalities. As I understand it, 2005 had the lowest number of 
fatalities in the history of the mining industry, and so 
somebody's doing something right.
    And I just want to point out for the record that both Mr. 
Friend and Mr. McKinney are from MSHA, and Mr. Friend mentioned 
at the beginning that Mr. McKinney may answer certain questions 
if somebody has greater information, and so I respect that you 
two are tag-teaming it, and would ask whoever has the greatest 
amount of information to supply that for us.
    I would ask either of you whether you believe that Congress 
needs to do anything to improve MSHA or mine safety at this 
point, given the recent history?
    Mr. Friend. Well, certainly there are several areas that 
maybe could use improvement. Our penalty process is antiquated. 
It is quite old. And the acting assistant secretary of labor, 
David Dye, has asked me to start the process to revise part 
100, which is in the 30 CFR, which will increase the penalties.
    The secretary has proposed, and the president, I think, has 
recommended that the maximum fine, which now is set at $60,000 
in the statute, that that be increased to $220,000 for the 
flagrant violations. Those are some of the things, I think, 
that Congress can do.
    Mr. Price. Anything besides penalties?
    Mr. Friend. Sir?
    Mr. Price. Anything besides penalties?
    Mr. Friend. We are doing pretty well with what we are--I 
mean, with the regulations that we are proposing. As far as 
congressionally, I do not know.
    I know there are some things in there that we are currently 
already doing that has been put forth--for example, the 24-
hour, 7-day hotline to report accidents, which the management 
at the Sago did not utilize. That is answered every day by a 
person.
    Mr. Price. Let me move on to a couple other items, 
because----
    Mr. Friend. Sure.
    Mr. Price [continuing]. We are limited on time, and I 
appreciate that.
    Mr. O'Dell made some pretty scathing statements, and as far 
as I can tell, many of them are accurate. And I would ask you 
to comment on--this belt air issue has me perplexed. As the 
chairman said, it appears that the company wants it, the miners 
do not, and that has not been worked out. I would ask you to 
comment on that.
    And then as a lay person not knowing anything about mines, 
how can belts be flammable? I mean, I understand how they can, 
but why do we allow flammable belts in an environment where 
explosions are possible?
    Mr. Friend. For your first question on the use of belt air, 
we have been approving on a case-by-case basis the use of belt 
air to ventilate working faces for 26 years. In fact, during 
the previous administration, those were approved on a case-by-
case basis 67 times. So it is not anything new.
    So the belt air rule, when it came out in 2004, codified 
all the stipulations and requirements that were in those case-
by-case petition for modifications. That included, as Ray 
mentioned, the atmospheric monitoring systems and the state-of-
the-art fire suppression systems.
    Air is needed at the working face to dilute methane.
    Mr. Price. And flammable belts?
    Mr. Friend. And the flammable belts--we determined that 
with the atmospheric monitoring system and the fire suppression 
system, there wasn't a need for a rule.
    Mr. Price. And I find that hard to believe, but I will take 
you at your word. Again, as a lay person, it is just 
inconceivable to me that we cannot tell where miners are at all 
times by some tracking device, and I just cannot believe that 
that technology is not out there.
    Mr. Friend. It is only in two coal mines in the world, the 
TRACKER system. One is in Australia, which we are evaluating 
this week, and the other is in China.
    Mr. Price. We just ought to be able to tell where they are.
    Mr. Friend. Sir?
    Mr. Price. We just ought to be able to tell where they are. 
It does not make any sense.
    Second, and I will close with this, it would make sense to 
me from a structural standpoint of mine that there ought to be 
safety rooms as the mine is built, as you go further in, that 
have some kind of communication device.
    So when we are sitting at home watching the television and 
crying and grieving for the families that are waiting for their 
loved ones to come up, it just seems like there ought to be a 
room where they ought to be able to go and be safe until we get 
there.
    Mr. Friend. Well, the metal and non-metal mines have 
required refuge chambers for many years in this country. If a 
miner cannot get to the surface within 1 hour, they have to 
have a refuge chamber. And the 1 hour is because the 
limitations on the self-rescuer they are wearing on their belt.
    However, that ore does not burn. It is totally unlike coal. 
I mean, coal in itself is a fuel. And does it work? It has in 
some countries, I understand, and certainly we want to look at 
those. I met with a manufacturer recently from Australia who is 
willing to make one that is telescopic, and that is due to the 
low heights of coal seams in this country, and they go down to 
28 inches, 29 inches, if you can believe that.
    So it is difficult because coal advances at such a rapid 
rate in development. Coal is a fuel. And we do not want people 
going into a refuge chamber if they can evacuate the mine. And 
if we failed anywhere over the years, it is to get that 
message: You evacuate the mine. You do not barricade.
    And we have distributed stickers--I have one on my hard hat 
that is years and years old. First item on it: If escape is 
blocked--and it is in red--then, in black letters--then you 
barricade. And perhaps we have not continued to hammer on that 
message, but we had that opportunity in January during the 
stand down for safety.
    All across this nation, we made that point, and we will 
continue to make it. You do not stay. You do not barricade. You 
get out of the mine. And that is the reason for the SCSR in the 
early 1980s. It gave them 1 hour of oxygen to get out of the 
mine, not to barricade with.
    Mr. Price. Thank you, Mr. Chairman. My time has expired.
    Chairman Norwood. Good question, Dr. Price.
    Mr. Owens, you are now recognized for questioning.
    Mr. Owens. Mr. Chairman.
    I would like to direct my first question to Mr. Friend and 
Mr. Watzman about these devices. Our information is that 
devices, tracking devices, are available not just in China and 
Australia but South Africa, Argentina, Canada and a couple 
other places.
    Now, in your department, is there any person assigned to 
keep up with what is happening in the world? We try to stay 
ahead of the world in every other respect.
    And, Mr. Watzman, you gave very fuzzy answers about such 
equipment, as if it may exist but it is not perfected. We can 
communicate with people on the moon. We can communicate with 
people on the Titanic at the bottom of the ocean. We have all 
kinds of ways to communicate, you know, on reasonable mediums.
    So why does it have to be absolutely perfect before it is 
useful? This device here has been in use for 15 years to 16 
years. It is a tracking device. It costs $20. Why doesn't every 
miner have one now?
    Are the costs so great that a coal industry that is making 
tremendous amount of money on energy--produce energy now--I am 
sure you are making huge profits. What is the impediment to 
introducing these devices?
    There is another device here which has been in existence 
for quite a while which will give you a--send to the miners a 
message. It cannot communicate two-way, but it can send them a 
message. It could have gotten a message which says--those 
miners in Sago--that if you walk a certain distance in a 
certain direction, you will be out of the smoke.
    You know, this is the kind of thing--these things exist 
now. Why is not America, always wanting to be ahead in 
technology--why are we dragging our feet, and why do you give 
such fuzzy answers about the possibilities?
    Mr. Watzman. Congressman, let me begin with the tracking 
device and set the record straight on a couple facts. Number 
one, the device you have shown is not $20. It is $200. But 
price is not the issue.
    Mr. Owens. You mean the market has not brought it down yet.
    Mr. Watzman. This industry has shown time and time again 
that it will spend what it takes to provide a safe environment. 
But that----
    Mr. Owens. $200 is an impediment?
    Mr. Watzman. But that device in and of itself does not 
provide the tracking. There are underground beacons that have 
to be placed every 150 feet for those to operate. The miners 
must pass by those beacons. And if one of those is damaged when 
underground, you have lost tracking capability.
    It is not that we will not do it. It is not that we are 
unwilling to do it. It is that we are not aware of technology 
that has been perfected to provide----
    Mr. Owens. Are you going to wait until it is fully 
perfected?
    Mr. Watzman [continuing]. What we ultimately would like to 
see----
    Mr. Owens. It has to be 100 percent perfect before you will 
install it?
    Mr. Watzman. No, it does not have to be 100 percent, but we 
also do not want to provide a false sense of security. These 
systems are not perfect today. They require----
    Mr. Owens. Thank you, sir. Thank you.
    Mr. Watzman [continuing]. Underground----
    Mr. Owens. Mr. Friend, Mr. Friend----
    Mr. Friend. Yes.
    Mr. Owens [continuing]. Have you ever considered mandating 
that they use these devices? Anybody looked at the situation? 
Has your department concluded that it is too costly, it is not 
quite perfect? Has there been any real discussion of these 
existing devices employed in mines throughout the world?
    Mr. Friend. Yes. As I said, we are evaluating one in 
Australia now. There is none in this country, the TRACKER.
    Mr. Owens. You are evaluating one in Australia.
    Mr. Friend. Yes, the TRACKER system--also, the PED System. 
We have gone to four mines in the last 2 weeks to evaluate the 
effectiveness of the PED.
    Mr. Owens. One has been around for 15 years.
    Mr. Friend. I spoke to president of the company that 
manufactures those, and they are not $20. They are $200. But as 
he said, the price is irrelevant. But there is a lot of 
misinformation----
    Mr. Owens. Price is irrelevant, okay?
    Mr. Friend. That is what I said, yes.
    Mr. Owens. Let me talk about price in these--I have about 
18 significant safety rules, health and safety rules, that you 
have either withdrawn--17 you have withdrawn and one you have 
delayed.
    What was the problem? I will just read a few: Enhanced 
requirements for self-rescuers. Require conveyor belts to be 
flame resistant. Establish accident investigation hearing 
procedures. Lower miner exposure to coal mine dust.
    Why were they withdrawn, all of these? Was it too costly, 
too complicated? I mean, what is----
    Mr. Friend. Well, first----
    Mr. Owens. I am going to----
    Mr. Friend. First of all, those are----
    Mr. Owens [continuing]. Ask unanimous consent to submit 
questions----
    Mr. Friend. First of all, and I may not be able----
    Mr. Owens [continuing]. In writing--I am going to give you 
the whole list of 18, but----
    Mr. Friend. Sure.
    [The submitted questions follow:]

 Supplementary Questions for Witnesseses Submitted by Representatives 
                            Owens and Miller

Questions for Mine Safety and Health Administration (MSHA) Witnesses
    1. News reports have indicated that MSHA investigators have 
declined to interview the mine rescue teams which participated in the 
rescue attempts at the Sago and Aracoma Alma mines. This has caused 
much concern among the rescue team members, the families of the 
victims, and the mining communities. Do MSHA accident investigation 
procedures require such interviews? How can we ensure future rescue 
teams are prepared for their tasks without interviewing those who have 
recently had to perform rescue duties?
    2. The regulations currently provide that with the exception of 
small and remote mines and those operating under special mining 
conditions, every operator of an underground mine is to establish or 
enter into an arrangement for two mine rescue teams to be available at 
all times when miners are underground.
          a. How does MSHA ensure compliance with this requirement? Is 
        this something checked during mandatory and spot-inspections? 
        How many operators have been cited by MSHA over the last year 
        for failure to comply with the requirements of 30 CFR 49.2 and 
        what penalties have been assessed?
          b. Has MSHA delegated any responsibility to ensure compliance 
        with this requirement to any of the States? Do any of those 
        states have requirements concerning rescue teams that differ 
        from those under 30 CFR 49.2?
          c. How many underground coal mines and how many underground 
        metal and nonmetal mines currently meet this requirement by 
        establishment of their own rescue teams?
          d. How many underground coal mines and how many underground 
        metal and nonmetal mines currently meet this requirement by 
        entering into an arrangement for mine rescue services rather 
        than establishing their own rescue teams? Of these, how many 
        contract with a state to provide rescue services? How many 
        contract with the operators of other mines? Do any contract 
        with local rescue services or fire departments? How does MSHA 
        ensure that these non-resident teams are trained and equipped 
        in accordance with the requirements of 30 CFR Part 49?
          e. How many underground coal mines and how many underground 
        metal and nonmetal mines are currently considered ``small'' or 
        ``remote'' for the purposes of this requirement? How frequently 
        does MSHA review their mine rescue plans?
          f. How many underground coal mines and how many underground 
        metal and nonmetal mines currently operate ``under special 
        mining conditions'' for the purposes of this requirement? How 
        frequently does MSHA review their mine rescue plans?
    3. What procedures does MSHA have in place to coordinate its 
activities during an emergency with local first responders such as 
police, rescue and fire departments? Does MSHA have funds dedicated to 
training first responders about special needs in mine emergencies? Are 
mine rescue teams required to invite local first responders to 
participate in required training sessions?
    4. Why did this Administration withdraw from its rulemaking agenda 
initiatives that would have addressed some of the safety hazards that 
have led to the recent loss of lives underground? Why haven't you 
restarted each one of these initiatives?
    5. You have announced you will be using the agency's authority to 
issue emergency temporary standards to deal with a few of the safety 
hazards that have received public attention since the Sago accident. On 
the other hand, you seem to be moving at a much slower pace in adopting 
rules requiring new communications technologies which could have saved 
lives in that tragedy. Is this because the industry has threatened you 
with a lawsuit? What can this Congress do to ensure these life-saving 
devices get into our mines before more lives are lost?
    6. For many years, permitting air used to ventilate the mine to run 
over conveyer belts, which generate friction and sparks, was prohibited 
by the law. Exceptions were only permitted after a public hearing and a 
determination by MSHA that the mine operator would observe a set of 
conditions specifically designed to limit the risk of fire in that 
mine. This Administration ``green lighted'' the use of ``belt air'' 
with a new regulation. In light of the Aracoma-Alma fire, why isn't 
MSHA seeking to put a hold on its ``belt entry rule''?
    7. We have seen a news release announcing a new review of the 
penalty assessment process at MSHA, but nothing more than a news 
release. What is the scope of this effort and when can we expect some 
answers?
    8. You appear to have succeeded in greatly angering the families of 
the victims of these tragedies by, to date, keeping them from hearing 
witnesses who may be revealing information about the last hours of 
their loved ones. Why did MSHA withdraw proposed rules that would have, 
after public notice and comment, established procedures for public 
hearings and accident investigations?
    9. After tragedies like this, how should MSHA's own conduct be 
assessed? Don't we need some independent jury or body performing this 
critical function to ensure a full and honest review?
    10. Are decisions about mine safety and health being made by MSHA's 
technical experts, or are non-expert appointees in other parts of the 
Department of Labor calling the shots?
    11. Self rescuers only provide about one hour's worth of oxygen, 
and MSHA only requires operators to provide one for each underground 
miner. Why hasn't MSHA required more?
          a. Isn't it true that it could often take more than an hour 
        to evacuate a mine?
    12. It was recently reported (Charleston Gazette) that the number 
of mine rescue teams declined by 10 percent between 2000 and 2002 
alone, and the number of people participating in the annual rescue team 
competition has declined by 70 percent in the last 30 years. Do you 
know how many mines currently meet the requirements for having at least 
two mine rescue teams within two hours of the mine?
          a. When the Bush Administration withdrew a Clinton-era 
        proposal that sought to increase the number and availability of 
        mine rescue teams, the Administration stated that it planned to 
        evaluate non-regulatory alternatives to that proposal. What 
        have you done to evaluate those non-regulatory alternatives? 
        What would those non-regulatory alternatives be? What have been 
        the results of your evaluation thus far?
    13. What is the state of your inspector workforce? In a September 
2003 report, the GAO warned that 44 percent of MSHA's inspectors would 
be eligible to retire within 5 years. Are we facing a shortage of 
qualified mine inspectors?
    14. What impact has the loss since 2001 of 190 authorized coal 
enforcement personnel had on MSHA?
    15. When the Administration withdrew the Clinton-era proposal to 
improve the use of self-contained self-rescue devices, the 
Administration said it was withdrawing the item ``in light of resource 
constraints and changing safety and health regulatory priorities.'' 
What were those resource constraints? What were those changing safety 
and health regulatory priorities?
          a. When the Administration withdrew the Clinton-era proposal 
        to improve accident investigation hearing procedures, the 
        Administration said it was withdrawing the item ``in light of 
        resource constraints and changing safety and health regulatory 
        priorities.'' With respect to this proposal, what were those 
        resource constraints? What were those changing safety and 
        health regulatory priorities?
          b. When the Administration withdrew the Clinton-era proposal 
        that included requirements for technology to strengthen 
        protections against two-story high trucks that haul coal, the 
        Administration said it was withdrawing the item ``in light of 
        resource constraints and changing safety and health regulatory 
        priorities.'' With respect to this proposal, what were those 
        resource constraints? What were those changing safety and 
        health regulatory priorities?
          c. When the Administration withdrew the Clinton-era proposal 
        to lower exposure to silica to prevent silicosis in 
        mineworkers, the Administration said it was withdrawing the 
        item ``in light of resource constraints and changing safety and 
        health regulatory priorities.'' With respect to this proposal, 
        what were those resource constraints? What were those changing 
        safety and health regulatory priorities?
          d. When the Administration withdrew the Clinton-era proposal 
        to provide new safety standards for specific conditions in 
        anthracite mines, the Administration said it was withdrawing 
        the item ``in light of resource constraints and changing safety 
        and health regulatory priorities.'' With respect to this 
        proposal, what were those resource constraints? What were those 
        changing safety and health regulatory priorities?
          e. When the Administration withdrew the Clinton-era proposal 
        to increase the number of hours of annual refresher training 
        for mine supervisors, the Administration said it was 
        withdrawing the item ``in light of resource constraints and 
        changing safety and health regulatory priorities.'' With 
        respect to this proposal, what were those resource constraints? 
        What were those changing safety and health regulatory 
        priorities?
          f. When the Administration withdrew the Clinton-era proposal 
        to address the safe design and construction of impoundments at 
        metal and nonmetal mines, the Administration said it was 
        withdrawing the item ``in light of resource constraints and 
        changing safety and health regulatory priorities.'' With 
        respect to this proposal, what were those resource constraints? 
        What were those changing safety and health regulatory 
        priorities?
          g. When the Administration withdrew the Clinton-era proposal 
        to revise and clarify a standard to require underground metal 
        and underground non-metal mines to have at least two separate 
        exits to the surface, the Administration said it was 
        withdrawing the item ``in light of resource constraints and 
        changing safety and health regulatory priorities.'' With 
        respect to this proposal, what were those resource constraints? 
        What were those changing safety and health regulatory 
        priorities?
          h. When the Administration withdrew the Clinton-era proposal 
        to address a gap in the regulation that prohibits people from 
        walking on or around surge or storage piles but allows vehicles 
        and equipment to be operated on the piles ``in light of 
        resource constraints and changing safety and health regulatory 
        priorities.'' With respect to this proposal, what were those 
        resource constraints? What were those changing safety and 
        health regulatory priorities?
          i. When the Administration withdrew the Clinton-era proposal 
        to explore both regulatory and non-regulatory ways to eliminate 
        or reduce hazards associated with confined spaces in mines, 
        including entrapment by shifting piles, falling into materials, 
        and being struck by overhanging materials ``in light of 
        resource constraints and changing safety and health regulatory 
        priorities.'' With respect to this proposal, what were those 
        resource constraints? What were those changing safety and 
        health regulatory priorities?
          j. When the Administration withdrew the Clinton-era proposal 
        to specify the proper equipment electrical grounding, in light 
        of accidents occurring from inadequate and improper grounding 
        of power mining equipment ``in light of resource constraints 
        and changing safety and health regulatory priorities.'' With 
        respect to this proposal, what were those resource constraints? 
        What were those changing safety and health regulatory 
        priorities?
    16. A February 27th, 2006 article in USA Today stated that 
``federal inspectors routinely concluded that safety violations at the 
Sago Mine endangered only one person, findings that helped keep fines 
to a minimum before the disaster killed 12 miners in January.'' We 
understand that, if a violation is deemed to endanger more than one 
person, the fine may go up dramatically.
          a. Sago had six citations for blocking escapeways that miners 
        use to flee a fire or explosion. Each citation said only one 
        miner was endangered by the blocked escapeway. The mine paid 
        $60 fines for each of two such violations. Why would only one 
        miner be endangered by a blocked escapeway?
          b. On August 16, 2005, an inspector found ``chemical smoke'' 
        being blown toward areas where two mining teams were working. A 
        team typically has eight to ten miners. The citation said one 
        miner was endangered. Why would only one miner out of a total 
        of two mining teams be endangered by chemical smoke?
          c. Sago was cited for 22 violations from July 2004 to 
        December 2005 for ``accumulation of combustible materials''--
        coal dust and coal chunks that can spread fires and explosions. 
        All 22 violations said one miner was endangered. Why would only 
        one miner out of an entire underground workforce be endangered 
        by the accumulation of combustible materials each time?
                  i. Across the board, is this a common practice? What 
                does it accomplish other than deflating the fines that 
                may be assessed for a safety or health violation?
Questions for National Mining Association (NMA) Witness
    1. Is the NMA prepared to support any of the legislation that has 
been introduced to-date in the U.S. House or Representatives or the 
U.S. Senate?
    2. You remember the efforts of this House about a decade ago to 
eliminate the Mine Safety and Health Administration (MSHA), to cut the 
number of mandatory inspections, and to otherwise weaken protections in 
this Nation's mines. Did your organization support those efforts? Does 
your organization believe any strengthening of the law is required, for 
example to deal with scoff-laws who refuse to pay penalties after all 
the adjudication is completed?
    3. It is widely accepted in Australia and other nations that a safe 
and healthful mine is a productive mine. Given this country's increased 
demand for coal, isn't it the obligation of this Congress to give MSHA 
more vigorous enforcement authority so it can ensure that each mine 
operator understands this simple but fundamental, guiding principle?
    4. What does your organization think about a user fee which would 
fund MSHA compliance assistance activities, so that it would be able to 
provide you with such services while using the taxpayers' money to fund 
enforcement?
Questions for the United Mineworkers of America (UMWA) Witness
    1. Why do you think MSHA has yet to require mine operators to use a 
continuous dust monitor to help bring new cases of black lung disease 
to an end?
    2. The mining industry has recently renewed its efforts to bring in 
foreign workers to operate the nation's mines. Aren't there plenty of 
our own young people who have gone through the basic training required 
for these jobs? Does this body need to do something more to help ensure 
the new generation of miners is trained in avoiding safety and health 
hazards?
    3. The UMWA serves as a miners' representative in the Sago 
investigation. Could you describe the role of a miners' representative 
in an investigation? Has the miners' representative been permitted to 
attend all the witness interviews at Sago?
                                 ______
                                 
    Mr. Owens [continuing]. For those few, can you give me one 
or two examples of why you withdrew the mine safety health?
    Mr. Friend. First of all, most of those, or a lot of them, 
were advance notices of proposed rules. They were not proposed 
rules, which makes a difference. A lot of administrations puts 
things on the regulatory agenda to seek information from the 
public, and that is what a request or advanced notice of 
proposed rulemaking is, such as the mine rescue teams was.
    The SCSR proposed rule, or ANPR, whichever one it was, and 
I am not really sure--the rationale for the core issue was to 
reduce the shelf life from 10 years to 5 years.
    Actually, NIOSH is drafting a rule now on SCSRs along with 
us. We do the approval for the explosiveness, and so it would 
be a joint effort.
    Mr. Owens. Would you agree with me that the coal mine 
industry is not in any fiscal difficulties that would prevent 
them from going forward to implement these procedures? It is 
quite well off in terms of its profits at present.
    Mr. Friend. Well, I cannot speak for the coal industry, but 
the profits probably are pretty good, considering the price of 
coal.
    Mr. Owens. Maybe Mr. Watzman will tell us.
    Is there any problem with not being able to finance these 
safety measures?
    Mr. Watzman. Congressman, as I said before, this industry 
has shown repeatedly that it will spend the money to provide a 
safe and healthy environment when the technology is available.
    Mr. Owens. Mr. O'Dell, will you comment on that, please?
    Mr. O'Dell. Yes, sir. I would like to make a couple of 
comments, if I may, on some of the things that you have said 
and some of the other members have said, if I may, just to 
clear up.
    There has been some information that was given today that 
may not be accurate. Self-rescuers, self-contained self-
rescuers--the same units that I wore when I worked underground 
in 1977. There has been no improvements. That is sad.
    The miners that provide energy to this country today have 
to rely on a 1-hour unit to get them out. I would suggest to 
anybody in this room, if they knew they only had 1 hour of 
oxygen to get out of this room, if they would stand still for 
that. It is time to move on and develop something better than 
what we have today.
    To suggest that the mining industry is safer now than it 
was before--if you look at it, we have had 21 fatalities this 
year. If you go back to February of last year, in a 12-month 
period up to now, we have had 43 total mine fatalities in that 
12-month period. That is unacceptable. It should never be 
acceptable.
    To clear up what is going on in West Virginia with the 
commission on the 90 days, I helped set that up. We have three 
members who sit on that commission. Three members represent 
industry. Three members represent labor.
    What they are to do is look at what is available today, 
because we believe there are systems out there available today 
with better communications, better self-rescuers, better forms 
of oxygen, and that panel is instructed to deliver all those 
available technologies to Governor Manchin.
    I personally talked with Governor Manchin. And if they 
cannot come to a conclusion after 90 days, Governor Manchin 
will push his bill as it is written, and it will move forward.
    Belt air--the only reason we have belt air ventilating coal 
mines today is because of poor planning. Operators got behind 
on their long wall developments.
    And if you ask any of these miners behind me, they will 
tell you they sat in meetings with mine management, and they 
have come to them to ask them to help get belt air to ventilate 
their mines because they got behind on their long wall 
developments.
    We had to reduce down to three entries, so now you only 
have three entries to ventilate the coal mines. that is 
unacceptable, and that is the only reason.
    Congress prohibited the use of belt air ventilation, and 
they need to go back and reinforce that rule that they have on 
the books.
    Chairman Norwood. Thank you, Mr. Owens.
    Mr. Owens. Thank you, Mr. Chairman.
    Chairman Norwood. Senator Kline, you are recognized now for 
5 minutes for questioning.
    And I remind us all we have a vote at 1:30. Oh, okay, good, 
we are good to go. Three o'clock.
    Go ahead.
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you, gentlemen, for being here. I want to identify 
myself with the remarks of the chairman early on that I am not 
a miner and I do not think any of us are miners.
    I have been in a mine one time, and that was scary enough 
for me, so my hats off to the miners who do this every day--
fairly amazing career choice.
    Let's see whose testimony--it looks like this is Mr. 
Friend's testimony. On page eight there is a fairly interesting 
chart on coal mining fatalities going back to 1978 and up to 
2005. That is a trend line that we would like to see, I think, 
in the long range. It is going down, the number of fatalities, 
on an angle about like that.
    Then on page 10, there is another chart that is much 
shorter. This is incident rates going from 2000-2005. I am 
curious as to what that would look like if it went back to 
1978.
    In other words, are the rates going down on the same sort 
of trend line that the total fatalities are? Do you happen to 
know off the top of your head?
    Mr. Friend. Well, just off the top of my head, from 1996, 
for example, to 2000, the incidence rate was above five, to 
give you a little bit of comparison. And in 2001 it dropped to 
4.75, 4.60, 4.23, 4.05, and currently, for 2005, and with 
preliminary data, it is down to 3.89 total incidence rate.
    Mr. Kline. Okay.
    Mr. Friend. So it was in the fives.
    Mr. Kline. Again, it is important to look at it over along 
term, because you can have spikes in any given time. And I 
bring this up because I sort of had a flashback when I looked 
at this in my earlier life when I was a naval aviator, a Marine 
pilot.
    If you look at the number of accidents and accident rates 
in naval aviation over that similar period of time, the line 
looks pretty much the same; that is, when I was a young man 
back in the 1960s, the naval aviation accident rate was 
horrific. And today, it is much better. And we have had this 
sort of trend line.
    And there are some key events that took place, and I am 
working up to a point here, but--some key events that took 
place over time. One of them was the development of standard 
operating procedures. You know, in naval aviation, that is 
pretty easy to dictate.
    And you talked about--I am going to kind of scan the panel 
here. You have over 600 mines operating in the United States. 
You have your agency overseeing it. You have interaction with 
labor, with the unions. Is there such a thing?
    You talked about, you know, get out, I think, Mr. Friend, 
you said on your hat. Is there such a thing as a standard 
operating procedure across the industry that would tell 
everybody, in red--is it on everybody's hard hat, get out?
    I am looking for where would that come from. Is that your 
job to come up with such a thing? Is it industry's job? Is it a 
collaborative effort that has to be done with the union?
    And I will start with you, Mr----
    Mr. Friend. We have been teaching and training that for 
many years, even prior to the MSHA days. That was standard 
operating procedure. Where I said we probably failed is we did 
not reiterate it as much as we should.
    Now, in my opening statement, I mentioned that we are 
working with industry and others to put together a procedure 
that should be followed in such an event. One of those things 
will be stressing evacuation.
    Mr. Kline. Well, I really did not mean to address that 
specific--I am just using that example, that little get out in 
an hour red and black sign. The point is is there standard 
operating procedures that is available across the industry that 
would include things like that.
    Mr. Friend. I do not know of a template, what each company 
is using.
    Mr. McKinney. We have training plans--excuse me. If I may 
respond.
    Mr. Friend. Yes.
    Mr. McKinney. We have training plans that we require at 
every coal mine, and when you hire in at a coal mine, you 
employ experienced miner trainer or inexperienced miner 
training--it is required that you are covered with those folks 
escape and evacuation procedures.
    So anybody coming to work at a coal mine--they go through 
those procedures with them. Then there is annual refresher 
training once a year.
    Mr. Kline. Okay.
    Mr. Friend. But in a broader term, I think you are talking 
about the procedures in case of an emergency, getting the teams 
there, getting the people who needs to be there----
    Mr. Kline. Right.
    Mr. Friend [continuing]. The whole thing.
    Mr. Kline. Right.
    Mr. Friend. And I do not know that--I do not think each 
mine has a standardized plan, but perhaps Mr. Watzman can----
    Mr. Kline. Well, I would just--I see my time is rapidly 
expiring. I would just suggest--and that is a fairly useful 
thing to think about whether it is the industry or the 
regulators or the miners themselves, to think about how that 
might come to use.
    And then one more comment about that. We found in that same 
naval aviation analogy that there came to be points where no 
matter what your SOP said, you needed a change in material. And 
part of getting that accident rate down was making the flying 
machines better.
    And that gets to the technology point, which I hope that 
all of us collectively are going to continue to work for. I see 
my time has expired.
    Mr. Chairman, I yield back.
    Chairman Norwood. Thank you, Mr. Kline.
    Ms. Woolsey, you are recognized now for 5 minutes.
    Ms. Woolsey. Thank you, Mr. Chairman. This is an 
improvement over our last hearing on the same subject, because 
at that hearing I remember several people, including a 
representative from the Heritage Foundation, who had never even 
been in a mine, who thought he could sit there and tell us how 
much we did not need the standards and the safety rules that we 
were working on at that time.
    Who can tell me--Mr. Secretary, can you tell me or tell us 
how many on-site inspections Sago has had over the last 2 years 
and how many withdrawal and returns at the Sago Mine?
    Mr. Friend. Well, I can tell you what they had in 2005, and 
I do not know if----
    Ms. Woolsey. Well, that is a beginning.
    Mr. Friend [continuing]. Goes back to 2004 or not, but----
    Ms. Woolsey. Well, let's have 2005.
    Mr. Friend. They had their mandated inspections and 208 
citations and orders were issued at the Sago Mine in 2005. 
Eighteen of those were withdrawal orders, where the miner was 
actually withdrawn and the piece of equipment or the area of 
mine as shut down, so they lost production.
    We increased enforcement that year because of the spike in 
their incidence rate. Management with MSHA met over 20 times 
with the management of the Sago Mine.
    Ms. Woolsey. Well, do you think it is because $60 was a 
fine instead of a hefty fine?
    [Applause.]
    Would that have made a different to the----
    Mr. Friend. And as noted, we are revising part 100.
    Ms. Woolsey. Well, cause and effect. The Mosaic Company 
mine in Saskatchewan, Canada had a disaster. All 72 miners 
escaped. Now, it was not a coal mine. It was a potash mine. It 
was a fire. But they escaped because they had rescue chambers. 
They had a place to go while they were waiting to be rescued.
    Mr. Watzman, is that one of your recommendations from your 
organization? I mean, you are the National Mining Association. 
Would that be a recommendation to MSHA that that be something 
that we need to----
    Mr. Watzman. Rescue chambers are being examined currently 
by our member companies to determine their application in the 
underground mines. You have touched upon the most important 
distinction. That was not coal.
    The ore body there, in and of itself, did not burn, and 
they used different mining practices that made that mine 
accommodating to a rescue chamber. But coal companies are 
examining the application of those, how to install them, where 
they might be installed in underground coal mines today.
    Ms. Woolsey. Well, don't you think that if you were in a 
coal mine fire, don't you think you would be safer if you were 
in one of these rescue chambers? Wouldn't you rather a rescue 
chamber than hanging out there with a red something on your 
safety helmet that says evacuate, when you do not know where to 
go?
    Mr. O'Dell. Ms. Woolsey?
    Ms. Woolsey. Yes.
    Mr. O'Dell. May I speak to that, please?
    Ms. Woolsey. Yes.
    Mr. O'Dell. First and foremost, we want to be able to get 
out of the coal mines.
    Ms. Woolsey. Absolutely.
    Mr. O'Dell. And so what we push for as miners is better 
protected intake escape ways, which has not been done in the 
past years.
    But such as the case that happened at Sago, had they have 
had mine chambers, those miners would have been alive today. I 
believe that the best plans go wrong, and we have been in 
contact with manufacturers out there who build these mine 
chambers, and we believe they can be used throughout the mining 
industry.
    We have seen them where they can be built for low coal, for 
high coal. We have seen them to where they can be rubber-tired, 
to where they can move in and out, rail mounted, as well as 
able to put them in crosscuts.
    So we think that they should be mandated as a backup 
resort. If we cannot escape, it would be nice to know that 
there would be some place to go in the event that all else 
would fail.
    Ms. Woolsey. Well, thank you. While I have got your 
attention, would you tell me if there are any other proposed 
rules that have been withdrawn from MSHA, Mr. O'Dell, that you 
think make it even more dangerous for miners? Which are the 
most--the rules that have been withdrawn that make it most 
dangerous?
    Mr. O'Dell. I guess I should also back up and say that in 
the 1969 and 1977 mine act that the secretary actually mandated 
that--it was mandated by the mine act that the secretary may 
require the use of such chambers.
    And because the language ``may'' was there, I guess they 
never moved on it. But there is language in the mine act that 
allows that to happen.
    Self-contained self-rescuers--we believe we need to improve 
upon those and move forward with those. We believe those 
technologies have not moved quickly enough, as we had stated 
before. Better protected intake escape ways.
    We believe that the investigative process being used during 
mine fatality investigations needs to be improved upon. The 
problem is that there is a whole world of technology out there, 
and nobody is talking.
    We have actually sat down and talked with folks from NASA. 
We have talked with folks from the Navy. We have talked with 
folks from throughout the country who says hey, this technology 
is here. It is there, but nobody is talking with each other, 
and nobody makes it apply to the mining industry.
    I mean, I would love for everybody at this table or 
everybody in this room to be able to have the opportunity to 
sit down and see what is actually available. You would be 
shocked to find out what there is.
    Ms. Woolsey. And is not available.
    Chairman Norwood. Thank you----
    Ms. Woolsey. Or what is available in the marketplace, you 
mean, already.
    Mr. O'Dell. Well, for instance, communications wise----
    Ms. Woolsey. All right.
    Mr. O'Dell [continuing]. We have been told by the Navy--and 
there is a group from the aviation department, actually from 
the Pentagon, who is working on a wireless system right now out 
of the University of Texas that believes that there is a system 
that can be applied to the mining industry that can be used to 
utilize communications not only in the event of emergencies, 
but we have communication problems on a day-to-day basis, so 
that could be applied on a day-to-day basis as well.
    So the communications systems, we believe, are there. The 
oxygen systems, whether it be the mine chambers or whether it 
be new, improved self-contained self-rescuers--it is a shame we 
have not moved on that.
    Chairman Norwood. Thank you, Mr. O'Dell. That sounds like a 
very good hearing for us to bring in some of these experts and 
see really what is available to us.
    I would love to do that, Mr. Owens, if you would work with 
me on that.
    Just quickly, mine arts, you are familiar with those, Mr. 
McKinney, from Australia?
    Mr. McKinney. Yes.
    Chairman Norwood. Yes. They look pretty neat to me. Maybe 
we ought to look at one some time.
    I want to thank all of you----
    Mr. Miller. May I respond to one question, please? Do we 
get a second round of questions?
    Chairman Norwood. No, sir. We are going to have a lot of 
hearings, though.
    Mr. Miller. Well, this is bullshit. I mean, you have people 
here.
    Chairman Norwood. When you get in charge, you get to run 
the damn thing. Right now, you are not.
    Mr. Miller. No, it is not about being in charge. It is 
about you have people here----
    Chairman Norwood. I want to thank each of----
    Mr. Miller [continuing]. To answer questions about the 
safety--and we do not get to ask the questions.
    Chairman Norwood. I know I appreciate your time and 
expertise.
    Mr. Miller. It is incredible.
    Chairman Norwood. And I expect my colleagues do as well.
    Mr. Miller. First hearing in 5 years, and you cannot have 
questions at the hearing.
    Chairman Norwood. As I indicated at the start of this 
hearing, today is the first of a series of hearings I expect--
--
    Mr. Miller. No wonder nothing gets----
    Chairman Norwood [continuing]. Our subcommittee----
    Mr. Miller [continuing]. Done downtown.
    Chairman Norwood [continuing]. Will conduct in this 
Congress relating to mining, mine safety and the need for 
changes, if any.
    I expect we will hear more about various legislative 
proposals from our colleagues in the House and from this 
subcommittee.
    Mr. Miller. Mr. Chairman, I move that members of the 
committee have an additional round of questioning, which is the 
ordinary course of business in every other committee hearing I 
have been in.
    Chairman Norwood. That is just not the truth. It has not--
--
    Mr. Miller. Maybe not where you run them. This is the first 
time I have sat----
    Chairman Norwood. There has not been a second round of 
committee----
    Mr. Miller. We are not having a vote until 3 o'clock.
    Chairman Norwood. I have another committee hearing going on 
right now.
    Mr. Miller. No, we have these people here to ask questions 
about today, about what is going on, when miners and their 
families want to know what the hell is going on, and the only 
thing we see is once we had a disaster, they started moving.
    Chairman Norwood. I apologize, folks. This committee is 
adjourned.
    [Whereupon, at 1:28 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

 Response From Robert M. Friend, Acting Deputy Assistant Secretary of 
      Labor for Mine Safety and Health, to Supplemental Questions

    1. News reports have indicated that MSHA investigators have 
declined to interview the mine rescue teams which participated in the 
rescue attempts at the Sago and Aracoma Alma mines. This has caused 
much concern among the rescue team members, the families of the 
victims, and the mining communities. Do MSHA accident investigation 
procedures require such interviews? How can we ensure future rescue 
teams are prepared for their tasks without interviewing those who have 
recently had to perform rescue duties?

    The MSHA investigations into the Sago and Aracoma Alma accidents 
are ongoing. I can assure you the necessary mine rescue personnel have 
been interviewed. With regard to required accident investigation 
procedures, the investigation team, in consultation with senior MSHA 
management, has discretion to interview those witnesses deemed 
necessary to the investigation.

    2. The regulations currently provide that with the exception of 
small and remote mines and those operating under special mining 
conditions, every operator of an underground mine is to establish or 
enter into an arrangement for two mine rescue teams to be available at 
all times when miners are underground. How does MSHA ensure compliance 
with this requirement? Is this something checked during mandatory and 
spot-inspections? How many operators have been cited by MSHA over the 
last year for failure to comply with the requirements of 30 CFR 49.2 
and what penalties have been assessed?

    Both Metal and Nonmetal (MNM) and Coal Mine Safety Inspectors 
ensure that the requirements of Part 49--Mine Rescue Teams are being 
complied with by mine operators during each mandatory regular 
inspection of underground mines. Four MNM mine operators have been 
cited during 2005 for violations of 30 CFR 49.2, which are primarily 
paperwork violations. The assessed penalty for each violation was $60. 
Five coal mine operators were cited during 2005 for violations of 30 
CFR 49.2 and they received similar proposed civil penalties.

    3. Has MSHA delegated any responsibility to ensure compliance with 
this requirement to any of the States? Do any of those states have 
requirements concerning rescue teams that differ from those under 30 
CFR 49.2?

    MSHA has not delegated responsibility to ensure compliance with 30 
CFR 49.2 to any of the States, and does not have the authority to do 
so.

    4. How many underground coal mines and how many underground MNM 
mines currently meet this requirement by establishment of their own 
rescue teams?

    Sixty-one MNM mines and 80 coal mines maintain their own mine 
rescue teams.

    5. How many underground coal mines and how many underground MNM 
mines currently meet this requirement by entering into an arrangement 
for mine-rescue services rather than establishing their own rescue 
team? Of these, how many contract with a state to provide rescue 
services? How many contract with the operators of other mines? Do any 
contract with local rescue services or fire departments? How does MSHA 
ensure that these non-resident teams are trained and equipped in 
accordance with the requirements of 30 CFR Part 49?

     163 MNM mines and 689 coal mines have entered into 
arrangements for mine-rescue services.
     39 MNM mines and 383 coal mines have arranged through the 
state to provide mine-rescue service.
     50 MNM mines and 200 coal mines have arranged for mine-
rescue coverage with other mines.
     74 MNM mines and 106 coal mines have arranged for mine 
rescue coverage with local rescue services or fire departments.
     Physical inspections of independent and contract rescue 
stations are conducted quarterly by MSHA to verify compliance with the 
regulations. State mine rescue stations are inspected when such 
stations are utilized for compliance with Part 49.

    6. How many underground coal mines and how many underground MNM 
mines are currently considered ``small'' or ``remote'' for the purpose 
of this requirement? How frequently does MSHA review their mine-rescue 
plans?

    Forty MNM mines have approved rescue plans under the ``small and 
remote'' criteria. Coal has 30 ``small'' or ``remote mines.'' Annual 
reviews are conducted to ensure these alternative mine-rescue 
capability plans are appropriate.

    7. How many underground coal mines and how many underground MNM 
mines currently operate ``under special mining conditions'' for the 
purposes of this requirement? How frequently does MSHA review their 
mine rescue plans?

    Eighty-three MNM mines, operating under special mining conditions 
as set out in Part 49, have approved alternative plans assuring that 
suitable mine-rescue capability is provided. Annual reviews are 
conducted to ensure alternative mine-rescue capability plans are 
appropriate. All underground coal mines are in compliance with rescue 
team requirements without resorting to the special circumstances test 
of Part 49. All underground mines have mine-rescue team coverage. MSHA 
reviews mine-rescue team arrangements during regular inspection 
activities.

    8. What procedures does MSHA have in place to coordinate its 
activities during an emergency with local first responders such as 
police, rescue and fire departments? Does MSHA have funds dedicated to 
training first responders about special needs in mine emergencies? Are 
mine-rescue teams required to invite local first responders to 
participate in required training sessions?

    The MSHA Metal/Non-Metal directorate maintains a Mine Emergency 
Plan for each district. This plan includes the contact information for 
local first responders such as police, rescue and fire departments. 
Coal Emergency Plans maintained by the MSHA Coal directorate list all 
applicable emergency numbers including ambulance and first responder 
contacts. There is no requirement in mine safety standards that mine 
rescue teams invite local first responders to training sessions; 
however, it is acceptable to do so. MSHA does not fund training of 
first responders although MSHA does discuss these issues and works with 
first responders whenever possible. MSHA has participated in a limited 
number of drills or training exercises with first responders. MSHA 
makes every effort to work cooperatively with all State and local 
authorities during emergencies although the precise protocol is not 
established by procedures. MSHA is implementing the requirement in the 
MINER Act that each underground coal mine operator have an approved 
emergency response plan.

    9. Why did this Administration withdraw from its rulemaking agenda 
initiatives that would have addressed some of the safety hazards that 
have led to the recent loss of lives underground? Why haven't you 
restarted each one of these initiatives?

    It would be premature to address perceived causes of the two fatal 
West Virginia mining accidents at the Sago and the Aracoma Alma No.1 
Mine and provide presumed solutions before the actual causes have been 
identified by professional staff trained to render such judgment. MSHA 
and other authorities are still conducting their investigation to 
determine the causes of these accidents.
    MSHA is unaware of any withdrawn rulemaking initiative that would 
have prevented the recent loss of lives underground.
    In December 2001, MSHA withdrew a rulemaking from our regulatory 
agenda that would have primarily addressed the service life of Self-
Contained Self-Rescuers (SCSRs), and the appropriate inspection of 
SCSRs, as well as some issues regarding training. In July 1999, MSHA 
had published an advance notice of proposed rulemaking soliciting 
information on a variety of issues related to SCSRs but did not propose 
a rule. A primary objective of this rulemaking initiative was to 
address the reliability of SCSRs, primarily by shortening the accepted 
service life of the SCSRs. We determined that this objective could be 
and was in fact being appropriately addressed by working with NIOSH to 
increase reliability of SCSRs through improvements in technology. NIOSH 
and MSHA are currently active in monitoring SCSR performance and NIOSH 
is testing additional features designed to monitor the reliability of 
approved SCSR devices.
    MSHA and NIOSH have confirmed that the SCSRs used at Sago Mine were 
all functional and had all been partially used. MSHA has required 
additional training in the use of SCSRs and we encourage miners to 
quickly don SCSRs immediately in the event of explosion or fire. MSHA's 
emergency temporary standard (ETS), published on March 9, 2006, assures 
that miners receive the necessary evacuation training and additional 
SCSR training under realistic conditions, and that miners have 
additional equipment available (SCSRs and lifelines) to successfully 
evacuate the mine during an emergency. We are exploring the efficacy of 
newer tracking, communication, and other mine rescue technologies to 
determine if they are safe and effective for use in an underground coal 
mine environment after a mine fire, explosion, or inundation.
    The MINER Act requires operators of underground coal mines to 
improve accident preparedness and emergency response. They must develop 
and adopt an emergency response plan specific to each mine they 
operate. Emergency response plans must address post-accident 
communication and tracking systems, post-accident breathable air, 
schedule for maintenance and checking the reliability of self-contained 
self-rescuers (SCSRs), training for SCSRs and lifelines.
    In December 2002, we withdrew an advance notice of proposed 
rulemaking (ANPRM), which had been on the Regulatory Agenda since 1999. 
This ANPRM solicited ideas from the mining community about where we 
might increase flexibility and provide increased safety for miners in 
our current regulations on mine rescue teams. However, this ANPRM did 
not produce promising suggestions. The mining community insisted that 
monetary incentives would be required for mine operators to increase 
the number of mine-rescue teams. Each of the incentives suggested would 
have either reduced safety (e.g., decrease the amount of training; 
reduce the assessed penalties if the mine operator had a mine-rescue 
team); or exceeded the scope of MSHA's authority (e.g., provision of 
tax incentives). We continue to promote mine rescue teams and work 
through non-regulatory means to increase the number of teams. MSHA is 
implementing requirements in the MINER Act related to mine rescue 
teams.

    10. You have announced you will be using the agency's authority to 
issue emergency temporary standards to deal with a few of the safety 
hazards that have received public attention since the Sago accident. On 
the other hand, you seem to be moving at a much slower pace in adopting 
rules requiring new communications technologies which could have saved 
lives in that tragedy? Is this because the industry has threatened you 
with a lawsuit? What can this Congress do to ensure these life-saving 
devices get into our mines before more lives are lost?

    MSHA is moving expeditiously to implement the MINER Act and other 
regulations that it believes will further protect miner health and 
safety.
    MSHA's pace in adopting rule changes regarding communications 
technologies is dependent on the limitations of the currently available 
technologies and the current state of development of other 
technologies.
    The majority of currently available, MSHA-approved communication 
systems are dependent on a wire-backbone, or installed wires or cables 
that provide power and a communication signal. Systems dependent on a 
wire-backbone would likely be compromised in a fire or explosion which 
could sever the wire connection rendering the system inoperable. The 
only MSHA approved system that does not necessarily require a wire-
backbone is the Mine Site Technologies Personal Emergency Device (PED) 
system. MSHA has investigated the PED and determined that it has 
serious limitations during emergencies, such that making the use of 
this specific device mandatory would be problematic at this time. 
First, the system's performance is predicated on the installation of a 
large loop antenna, which must be installed on the surface for the 
system to operate during an emergency. Some mines may have too much 
overburden or do not own the property rights, making surface 
installation impractical. Second, evaluation of the PED has revealed 
performance concerns regarding ``shadow zones''--certain places in 
underground mines where there is no signal received by the PED. Third, 
PED is a one-way paging system, meaning that the message sender cannot 
receive confirmation that the message has been received.
    MSHA is also currently investigating other wireless communication 
technology. We have received more than eighty (80) proposals in 
response to our request for communication and tracking system 
suggestions. None of the proposals received are currently approved as 
safe for use by MSHA. In reviewing the proposals, there are a number 
that have great potential. We have selected several of the most 
promising proposals that offer two-way wireless communications and are 
conducting field tests of these systems. We plan to evaluate 
performance and capabilities of these systems and share the findings 
with all concerned parties. Our expectation is that more state-of-the-
art systems will soon be available for America's mines, offering a 
wider choice of communication and tracking systems with improvements in 
coverage, reliability and range.

    11. For many years, permitting air used to ventilate the mine to 
run over conveyor belts, which generate friction and sparks, was 
prohibited by law. Exceptions were only permitted after a public 
hearing and a determination by MSHA that the mine operator would 
observe a set of conditions specifically designed to limit the risk of 
fire in that mine. This Administration ``green lighted'' the use of 
``belt air'' with a new regulation. In light of the Aracoma-Alma fire, 
why isn't MSHA seeking to put a hold on its ``belt entry rule?''

    The investigation at the Alma No. 1 mine is ongoing, and we cannot 
yet be certain of its ultimate findings. As the US. Attorney has 
stated, we have made a criminal referral of the preliminary findings at 
the Aracoma Alma No. I Mine.
    We believe from our preliminary investigation that the use of belt 
air did not contribute to the severity of the accident. The Aracoma 
Alma No. 1 belt air petition was approved by the Agency in 2000 and 
contained routine requirements. The final belt air rule actually 
increased miner protection at Alma No. 1 by including various 
requirements that were not included in the granted petition.
    MSHA has determined that the recent ``belt air'' rule increases 
protection for miners by adding various requirements that were included 
only in some granted petitions, and by making all mine operators comply 
with the same strict safety conditions when choosing to use belt air. 
For example, all sensors must be listed by a Nationally Recognized 
Testing Laboratory, such as Underwriter's Lab; the trunk lines for the 
communication system and the Atmospheric Monitoring System (AMS) must 
be installed in separate entries; carbon monoxide sensors must be 
installed in the intake escapeways; point-feeds must be monitored; 
sensor spacing must be reduced to 1,000 feet; alert and alarm levels 
must be reduced to 5 and 10 ppm; all outby sensors must automatically 
notify sections of alarms; and lifelines are required when returns are 
used as alternate escapeways.
    The recent ``belt air'' rule also provides additional protections 
for use of belt air to ventilate areas where mechanized mining 
equipment is being set up and removed. Before the ``belt air'' rule, 
this practice would have been permitted without additional protections.
    Some advantages of using belt air to help ventilate working places 
include: reducing dangerous methane concentrations; promoting the use 
of technologically advanced early-warning fire-detection systems; and 
reducing the number of additional entries required. There are also 
certain ground control advantages realized by being able to limit the 
number of development entries, such as reducing the probability of roof 
falls and rib outbursts. A recent analysis of accident and injury data 
reveals that there has never been a fatality attributed to fire or air 
contaminants being carried by belt air to the face of a coal mine.
    Since 1978, MSHA has evaluated about 90 petitions for modification 
to allow the use of belt air to ventilate working places in an 
underground coal mine. MSHA's experience over more than 25 years has 
established that the use of belt air is safe, provided that specified 
conditions, designed to maintain the level of safety and health, are 
met. The rulemaking itself, which began in 1983, was completed in 2004. 
There was appropriate notice and comment throughout the history of this 
rulemaking.
    The U.S. Court of Appeals for the D.C. Circuit in International 
Union, United Mine Workers of America v. Mine Safety and Health 
Administration, 407 F.3d 1250 (D.C. Cir. 2005), affirmed that the belt 
air rule did not violate section 101(a)(9) of the Mine Act, which 
states--
    No mandatory health or safety standard promulgated under this title 
[Title 30] shall reduce the protection afforded miners by an existing 
mandatory health or safety standard.
    MSHA is implementing the provision in the MINER Act related to the 
use of belt air in underground coal mines.

    12. We have seen a news release announcing a new review of the 
penalty assessment process at MSHA, but nothing more than a news 
release. What is the scope of this effort and when can we expect some 
answers?

    MSHA published a Notice of Proposed Rulemaking (NPRM) on September 
8, 2006. The rulemaking will implement penalty provisions in the MINER 
Act, and will also revise the existing penalty structure and the 
process for issuing proposed penalties. This rulemaking is a high 
priority and will be completed within the required timeframe. Public 
hearings began in September and will continue in October, 2006.

    13. You appear to have succeeded in greatly angering the families 
of the victims of these tragedies by, to date, keeping them from 
hearing witnesses who may be revealing information about the last hours 
of their loved ones. Why did MSHA withdraw proposed rules that would 
have, after public notice and comment, established procedures for 
public hearings and accident investigations?

    On the contrary, MSHA has taken a number of steps to fully inform 
the families of the miners who were killed in the Saga Mine explosion, 
the Aracoma Alma Mine fire and Darby Co. mine explosion about critical 
information and the status of the agency's investigations. Ten MSHA 
officials and technical experts, including the chief accident 
investigator, met with the Sago families for four and a half hours on 
March 9, 2006 in Buckhannon, WV. Another meeting of similar length with 
the Sago families was held on April 13, 2006. At that time, the 
families were given an advance set of the transcripts of the private 
interviews conducted during the accident investigation and we again 
answered questions and discussed the status of the ongoing 
investigation. On May 2-4, 2006 the Sago families had another 
opportunity to participate in the investigation by submitting questions 
to witnesses during the joint MSHA/ WV public hearing into the 
accident. In addition, MSHA's chief accident investigator has been in 
regular contact with the two families that were most directly affected 
by the Aracoma Alma Mine fire and they both have expressed appreciation 
for the regular updates. MSHA used a similar approach with one of the 
victim's families from Darby who desired regular updates on the 
Agency's progress in that investigation. MSHA is implementing the 
requirement in the MINER Act to establish a family liaison policy.
    MSHA's draft procedures for conducting public hearings were never 
published as proposed rules. The regulatory agenda item relating to 
public hearing procedures was withdrawn in favor of focusing resources 
on other priorities.

    14. After tragedies like this, how should MSHA's own conduct be 
assessed? Don't we need some independent jury or body performing this 
critical function to ensure a full and honest review?

    MSHA's long-standing policy to conduct an internal review following 
each accident that results in three or more fatalities provides a full 
and honest assessment of MSHA's performance as it relates to an 
accident--and, in many cases, has led to corrective actions to address 
issues identified by internal review teams.
    MSHA believes in the importance of conducting a thorough review of 
its own overall performance. MSHA's internal review teams consist of 
highly qualified, professional MSHA personnel who are outside the 
district where the accident occurred and independent of the accident 
investigation team. Team members report directly to the Assistant 
Secretary for Mine Safety and Health.
    An internal review is a thorough examination and objective 
evaluation of MSHA's enforcement practices at a mine that has 
experienced a major accident. It is one element of a management system 
designed to improve the Agency's enforcement performance with the 
overall goal of preventing future accidents.
    The internal review team reviews existing MSHA policies and 
procedures, inspection records, and data in MSHA's computer systems. 
The team also interviews Agency employees who perform inspection, 
investigation, and management functions.
    The review team prepares a detailed report documenting its findings 
and recommendations. MSHA makes internal review reports available to 
the public and posts the reports on its web site. MSHA believes that 
interested members of the public should have an opportunity to review 
the findings and recommendations in an internal review report and to 
hold the Agency accountable for correcting the deficiencies found.
    Numerous positive changes have resulted from internal reviews. Some 
examples include: better follow up on rock dust surveys; improved 
documentation of inspections; more appropriate decisions in Safety and 
Health Conferences following inspections; funding to update the 30-year 
old Impoundment Design Manual; increased management oversight at the 
district and national levels; and improved use of enforcement tools 
provided by the Mine Act.
    MSHA policy requires an internal review after each mining accident 
that results in three or more fatalities. For example, an internal 
review is underway into the Darby mine accident where five miners lost 
their lives. There may be other circumstances when the Assistant 
Secretary will direct that an internal review be conducted. An example 
of one of those internal reviews is the internal review conducted after 
the Martin County impoundment failure which did not cause a loss of 
life but did cause substantial environmental damage. The mine fire at 
the Aracoma Mine, in which two miners were killed, is also the subject 
of an internal review by the Agency.

    15. Are decisions about mine safety and health being made by MSHA's 
technical experts, or are non-expert appointees in other parts of the 
Department of Labor calling the shots?

    MSHA conducts its business by and through its core component of 
dedicated mine safety and health professionals who inspect mines and 
enforce the law on a daily basis. In addition, they handle everything 
from day-to-day matters to emergency situations. In every instance, 
issues are addressed and decisions are made with the health and safety 
of our Nation's miners as the primary concern of these safety and 
health professionals. These individuals provide the key experience and 
decision making capability necessary to address mine safety and health 
matters.

    16. Self rescuers only provide about one hour's worth of oxygen, 
and MSHA only requires operators to provide one for each underground 
miner. Why hasn't MSHA required more? Isn't it true that it could often 
take more than an hour to evacuate a mine?

    MSHA has issued an Emergency Temporary Standard (ETS) which has 
increased the stocks of SCSRs available and established safe cache 
locations which are well within reach of a single SCSR to address 
longer distances in the larger and deeper mines and mines that have 
obstacles which prevent direct egress.
    On March 9, 2006, MSHA's ETS went into effect, requiring at least 
one additional SCSR per miner. MSHA inspectors are currently reviewing 
mine operator storage plans for caches of extra SCSRs including 
determining that the first SCSR will last to the cache point. We are 
doing this to ensure the appropriateness of the SCSR cache location but 
in addition we have an additional opportunity to monitor SCSR use. 
MSHA's ETS takes into consideration that in some mines and in some 
circumstances, it may take more than one hour to exit the mine or to 
reach a safe breathing area, and thus requires caches of additional 
SCSRs in both required escapeways if it takes more than one hour to 
evacuate a mine. The preamble contains an extensive discussion of these 
issues. The full text is available at http:/ /www.msha.gov/KEGS/FEDREG/
FINAL/ 2006finl/ 06-2255.pdf.
    MSHA is also implementing MINER Act requirements. For example, MSHA 
has issued a Program Policy Letter which provides guidance to mine 
operators to facilitate the development of their Emergency Response 
Plans. On August 30, 2006, MSHA published a Request for Information in 
the Federal Register in order to solicit information and develop 
further guidance for mine operators in assuring that the plans provide 
safe and reliable post-accident breathable air supplies for trapped 
miners. MSHA has also participated with stakeholders in information 
meetings about the new MINER Act held across the country.

    17. Do you know how many mines currently meet the requirements for 
having at least two mine rescue teams within two hours of the mine?

    All Coal Mines are in compliance. One hundred thirteen Metal 
Nonmetal mines have at least two mine rescue teams within two hours of 
their mine.

    18. When the Bush Administration withdrew a Clinton-era proposal 
that sought to increase the number and availability of mine rescue 
teams, the Administration stated that it planned to evaluate non-
regulatory alternatives to that proposal. at have you done to evaluate 
those non-regulatory alternatives? What have been the results of your 
evaluation thus far?

    The number of mine rescue teams has declined over the years, as has 
the number of mines. MSHA looked at regulations that would increase the 
number of these teams and held a public meeting in March 2002 in 
Barbourville, Kentucky to gather current ideas and suggestions 
concerning mine rescue capabilities and preparedness. Both labor and 
industry stated that cost is the major factor considered in 
establishing a mine rescue team. Recommendations to MSHA focused on 
incentives, particularly reducing penalties for violations if a mine 
had a mine rescue team. Legally, MSHA could not adopt that approach. 
Therefore, MSHA withdrew the mine-rescue agenda item (no proposal was 
ever published) and issued two Program Information Bulletins that 
addressed mine rescue cost concerns related to training and technical 
assistance. The Administration continues to offer assistance for mine 
rescue team training and drilling. In addition, the Administration has 
revitalized the Mine Rescue Team Contests; the National Contest last 
fall drew the largest number of teams in recent years. MSHA is 
implementing requirements in the MINER Act related to mine rescue 
teams.

    19. What is the state of your inspector workforce? In a September 
2003 report, the GAO warned that 44 percent of MSHA's inspectors would 
be eligible to retire within 5 years. Are we facing a shortage of 
qualified mine inspectors?

           STATUS OF COAL ENFORCEMENT PERSONNEL AS OF 6/30/06
------------------------------------------------------------------------
                                                                2006
------------------------------------------------------------------------
Underground Inspectors....................................          274
Surface Inspectors........................................           53
Specialists...............................................          168
Trainees..................................................           92
                                                           -------------
      Total...............................................          587
------------------------------------------------------------------------

    No. MSHA is not not facing a shortage of qualified mine inspectors. 
It is certainly true that a significant number of federal mine 
inspectors are eligible to retire within less than five years, but our 
experience has been that MSHA's employees do not exercise their 
retirement option as soon as they are eligible. However, MSHA has taken 
steps to anticipate coming retirements, by recruiting qualified 
candidates through aggressive on-going job fairs in each district and 
reducing the time required to hire inspector trainees. Still, while we 
have reduced the hiring time for inspectors to approximately 45 days, 
it takes 18 months to fully train an inspector. The rate of attrition 
and training time, along with an increase in the mining industry's 
activity and the competition with the private sector for promising 
candidates remain challenges for MSHA. MSHA is currently moving 
promptly to recruit and train coal enforcement personnel, as called for 
in the FY 2006 Emergency Supplemental Appropriations Act for Defense, 
Global War on Terror, and Hurricane Recovery.

    20. What impact has the loss since 2001 of 190 authorized coal 
enforcement personnel had on MSHA?

    These changes have not had an adverse impact on enforcement. To the 
contrary, in both metal/nonmetal and coal, MSHA is conducting more 
inspections than five years ago, and has increased its mandated 
inspection completion rate since 2000. On the coal side, MSHA has 
improved its required regulatory inspection completion rate from 98.3% 
in 2000 to 99.6% in 2005.
    Since 2001, the coal mining sector has seen a 6% reduction in the 
number of mines. During this period, MSHA adjusted its internal 
structure to correspond to the workload decrease by consolidating 
administrative support operations, allowing resources to be dedicated 
to its core functions. The vast majority of the decrease in staffing 
levels since 2001 have occurred in the administrative and support 
components of the Agency. Increased automation and use of technology 
enabled MSHA to reduce the number of staff needed to effectively 
perform the functions. In 2005, we saw a moderate increase in the 
number of mines and miners as the industry stepped up production to 
meet the demand for this increasingly vital resource. MSHA once again 
looked at its structure and processes and identified areas for 
improvement that enabled it to attain the safest year in history.

    21. When the Administration withdrew the Clinton-era proposal to 
improve the use of self-contained self-rescue devices, the 
Administration said it was withdrawing the item ``in light of resource 
constraints and changing safety and health regulatory priorities.'' 
What were those resource constraints? What were those changing safety 
and health regulatory priorities?

    The issue noted in your question had been on the Agency's 
regulatory agenda as an advance notice of proposed rulemaking (ANPRM)] 
for four years before this Administration took office without a rule 
being proposed. This Administration revised the regulatory agenda upon 
taking office to provide a roadmap for regulatory actions that would be 
realistically addressed and completed and that were in active status.
    Self-contained self-rescuers (SCSRs) are closed circuit breathing 
apparatuses that provide a source of oxygen and greatly increase a 
miner's chance of surviving a mine emergency involving an irrespirable 
atmosphere. This agenda item would have addressed the inspection and 
service life of these breathing devices, as well as training 
requirements for their use and storage. We determined that additional 
testing and monitoring was a necessary predicate for rulemaking. 
Currently, NIOSH is working on a proposed rule to address reliability. 
MSHA is assisting NIOSH in the development of that rule. MSHA and NIOSH 
have a long-term protocol to take SCSRs out of service from mines (and 
replace them) in order to test the functionality of SCSRs at all stages 
of their shelf life. In addition, any report either agency receives of 
a defective or less than fully functional SCSR is fully investigated.
    MSHA's other priorities over the succeeding years have included 
lowering the permissible exposure limit for asbestos exposure; 
developing a final rule for diesel particulate exposure; finalizing a 
rule for hazard communication; proposing rules on respirable coal mine 
dust and a continuing collaboration with NIOSH to develop a personal 
continuous dust monitoring system; publication of a final rule on 
independent laboratories to allow alternative testing and evaluation 
requirements to bring technological innovations to the U.S. mining 
market more quickly; a final rule on methane monitors and roof bolting 
equipment; a final rule on belt entry ventilation; a final rule on 
approval fees for testing; an ANPRM on substance abuse; and a final 
rule on training for shaft and slope construction workers as well as a 
final rule on the use of low and medium power electric generators at 
underground coal mines. MSHA is moving very expeditiously to finalize 
the Emergency Temporary Standard (ETS) issued in the aftermath of the 
Sago and Aracoma Alma mine accidents. Provisions in the ETS will 
greatly improve mine operator emergency preparedness and a miner's 
chances of safely evacuating an underground coal mine when a mine 
emergency occurs. In addition, MSHA is implementing MINER Act 
requirements designed to improve mine safety rescue and emergency 
response technology. The MINER Act requires that MSHA issue regulations 
addressing: (1) mine rescue teams at underground mines; (2) civil 
penalties at all mines and (3) seals at underground coal mines. MSHA 
expects to be able to fully meet this ambitious rulemaking agenda in FY 
2007.

    22. A February 27, 2006 article in USA Today stated that ``federal 
inspectors routinely concluded that safety violations at the Sago Mine 
endangered only one person, findings that helped keep fines to a 
minimum before the disaster killed 12 miners in January.'' We 
understand that, if a violation is deemed to endanger more than one 
person, the fine may go up dramatically.

    a. Sago had six citations for blocking escapeways that miners use 
to flee a fire or explosion. Each citation said only one miner was 
endangered by the blocked escapeway. The mine paid $60 fines for each 
of two such violations. Why would only one miner be endangered by a 
blocked escapeway?
    b. On August 16, 2005, an inspector found ``chemical smoke'' being 
blown toward areas where two mining teams were working. A team 
typically has eight to ten miners. The citation said one miner was 
endangered. Why would only one miner out of a total of two mining teams 
be endangered by chemical smoke?
    c. Sago was cited for 22 violations from July 2004 to December 2005 
for ``accumulation of combustible materials''--coal dust and coal 
chunks that can spread fires and explosions. All 22 violations said one 
miner was endangered. Why would only one miner out of an entire 
underground workforce be endangered by the accumulation of combustible 
materials each time? Across the board, is this a common practice? What 
does it accomplish other than deflating the fines that may be assessed 
for a safety or health violation?
    MSHA is currently conducting an Internal Review of all inspection 
and associated activities at Sago mine. The severity of the risk posed 
by the violation (number of persons affected) and negligence will be 
addressed by the review. To preserve the objectivity and independence 
of the Internal Review team, it would be inappropriate for MSHA to 
prematurely draw conclusions.
                                 ______
                                 

 Response From Bruce Watzman, Vice President Safety, Health, and Human 
   Resources, National Mining Association, to Supplemental Questions

                       National Mining Association,
                                      Connecticut Ave., NW,
                                    Washington, DC, March 29, 2006.
Hon. Charlie Norwood,
Chairman, Subcommittee on Workforce Protections, Committee on Education 
        and the Workforce, 2181 Rayburn House Office Building, 
        Washington, DC.
    Dear Mr. Chairman: Thank you for providing us the opportunity to 
appear before the Subcommittee earlier this month to share the views of 
the members of the National Mining Association on ``Evaluating Health 
and Safety Regulations in the American Mining Industry.''
    Attached are responses to the questions I received following my 
appearance.
    We look forward to working with you and the members of the 
Subcommittee as you consider legislation to advance mine safety.
            Sincerely,
                                             Bruce Watzman,
                Vice President Safety, Health, and Human Resources,
                                       National Mining Association.
    1. Is the NMA prepared to support any of the legislation that has 
been introduced to-date in the U.S. House of Representatives of the 
U.S. Senate?
    Response: We support several of the concepts contained in 
legislation that has been introduced but have concerns with other 
components of the pending measures. As stated during my appearance 
before the Subcommittee on March 1, 2006, we have developed the 
following set of guiding principles that we believe should be reflected 
in legislation:
     Expediting development and introduction of ground 
penetrating communication and tracking technology;
     Improving emergency notification;
     Enhancing safety training and rescue capabilities;
     Providing a liability shield and indemnification for mine 
rescue activities;
     Ensuring that new requirements are accompanies by workable 
transitional timeframes;
     Providing authority for mine operators to conduct 
mandatory substance abuse testing of all personnel at the mine; and
     Providing tax incentives to help companies invest in 
equipment and training needed for enhanced mine safety and rescue 
capabilities.

    2. You remember the efforts of this House about a decade ago to 
eliminate the Mine Safety and Health Administration (MSHA), to cut the 
number of mandatory inspections, and to otherwise weaken protections to 
this Nation's mines. Did you organization support these efforts? Does 
your organization believe any strengthening of the law is required, for 
example to deal with scoff-laws who refuse to pay penalties after all 
adjudication is completed?
    Response: We do not support efforts to eliminate the Mine Safety 
and Health Administration, nor do we support a cut in the statutory 
requirements that each underground mine be inspected four times per 
year and each surface mine twice per year. We do believe however that 
the manner in which inspections are conducted needs to be revised to 
reflect industry operational changes that have taken place since the 
law was passed. We submit that providing the agency with the ability to 
focus its resources on those who persistently ignore citations and 
penalties would supply a more effective deterrent to those who chose to 
ignore the law.

    3. It is widely accepted in Australia and other nations that a safe 
and healthful mine is a productive mine. Given this country's increased 
demand for coal, isn't it the obligation of this Congress to give MSHA 
more vigorous enforcement authority so it can ensure that each mine 
operator understands this simple but fundamental guiding principle?
    Response: The guiding principle that a productive mine is a safe 
and healthful mine is well-understood and followed in the United 
States. As the information we have furnished the Subcommittee 
demonstrates, as coal mine productivity improved accidents and injuries 
have declined. The Mine Act vests MSHA with significant enforcement 
powers, including the authority to close a portion of a mine or have 
removed from service equipment that presents an imminent danger hazard 
to miner's safety and health. This authority, when correctly applied, 
has proven sufficient to improve safety performance at our nation's 
mines.

    4. What does your organization think about a user fee which would 
fund MSHA compliance assistance activities so that it would be able to 
provide you with such services while using the taxpayers' money to fund 
enforcement?
    Response: We do not believe that a ``user fee'' is necessary or 
appropriate. Compliance assistance activities are, in truth, an 
integral part of an inspector's work protocol. As such, it would 
extremely difficult and burdensome to require inspectors to allocate 
their time spent at the mines to differentiate between what one would 
deem to be ``compliance assistance'' activities as opposed to 
enforcement activities. Other agencies, such as the Occupational Safety 
and Health Administration and Environmental Protection Agency, which 
have established and administer compliance assistance programs do not, 
to our knowledge, charge user fees for those activities
                                 ______
                                 

  Additional Materials Submitted by Dennis O'Dell, Administrator for 
           Department on Occupational Health and Safety, UMW



Text of the note that Mr. Hamner left in his lunch bucket for his wife 
        and daughter. Mr. Hamner died in the Sago mine disaster.

        
        
                                 ______
                                 

   Prepared Statement of Charles E. Hawkins III, CAE, Executive Vice 
     President and COO, National Stone, Sand, & Gravel Association

    Mr. Chairman, the National Stone Sand & Gravel Association (NSSGA) 
appreciates the opportunity to submit a statement for the record of 
this mine safety hearing.
    Based near the nation's capital, NSSGA is the world's largest 
mining association by product volume. Its member companies represent 
more than 90 percent of the crushed stone and 70 percent of the sand 
and gravel produced annually in the U.S. and approximately 115,000 
working men and women in the aggregates industry. Sale of natural 
aggregates (crushed stone, sand and gravel) generates nearly $38 
billion annually for the U.S. economy. The estimated output of 
aggregates produced in the first half of 2005 was 1.3 billion metric 
tons, a four percent increase over the same period in 2004 (2.85 b MT). 
According to the U. S. Geological Survey, the significant increases in 
aggregates production were due to the increase in construction 
activity, which has risen every year for the past decade. Construction 
spending amounted to $617.9 billion during the first half of 2005, a 
nine percent increase over the same period in 2004.
    Aggregates are used in nearly all residential, commercial and 
industrial building construction and in most public works projects, 
such as roads, highways, bridges, railroad beds, dams, airports, water 
and sewage treatment plants and tunnels. While the American public pays 
little attention to these natural raw materials, they go into the 
manufacture of asphalt, concrete, glass, paper, paint, pharmaceuticals, 
cosmetics, chewing gum, household cleansers and many other consumer 
goods.
    The disasters in the Sago Mine and Aracoma Coal Alma No. 1 Mine are 
tragic and the loss of even one life, let alone 14 lives, is 
devastating. Nevertheless, the safety record of the mining industry, 
and the aggregates industry in particular, has improved due to a 
heightened level of effort invested by the industry to sustain an 
improved performance. The improvement in the aggregates industry safety 
record is attributable to a combination of more effective safety and 
health programs developed and implemented by the industry over the past 
decade.
    The first priority for the aggregates industry is and will continue 
to be the safety and health of its miners. The industry recognizes that 
its employees are its most valuable asset, an asset that must be 
protected for the well being of the industry now and in the future. As 
the workforce ages, it has become increasingly difficult to recruit new 
miners to the industry. Maintaining an excellent safety record through 
the implementation of effective safety and health programs is 
considered a critical element for attracting and keeping a highly 
skilled workforce.
    Members of the National Stone, Sand & Gravel Association have 
developed and agreed to a set of guiding principles to assist member 
companies in their efforts to understand the importance of safety to 
their individual organizations as well as to the industry as a whole. 
In addition, a safety pledge was developed in 2002 incorporating the 
safety guiding principles. More than 90 percent of the operations of 
NSSGA member companies are now covered by this pledge, signifying the 
importance of safety and a commitment toward ensuring the safety and 
health of all their employees.
    It is important to recognize that underground aggregates operations 
present a much lower risk than other underground mining sectors because 
of the nature of the mined product and the mining methods used to 
extract the material. Specifically, aggregates products are non-
combustible, non-flammable minerals. As a result, the probability for 
fire is very low. Since there are no flammable gases present and the 
material does not act as a fuel, specialized equipment is not needed in 
aggregates underground mines. The mining methods used, called ``room 
and pillar,'' create large open spaces adequately supported by the 
material left in place. This technique minimizes the need for extra 
support for the mine roofing. These mines are generally only a few 
hundred feet deep and have entrances suitable for large material 
handling equipment like front end loaders and haul trucks. These large 
entrances also provide access for emergency equipment minimizing the 
need for specialized mine rescue teams and equipment. Natural 
ventilation is often adequate for providing adequate air to miners 
underground.
    Recent news articles have ascribed some of the responsibility for 
the Sago incident to the cooperative alliances MSHA has signed with the 
industries it regulates, implying an inappropriately close 
relationship. We would argue the opposite. The NSSGA and MSHA 
formalized the first such alliance in 2002, setting forth a cooperative 
agreement to develop programs and tools for the improvement of safety 
and health in the aggregates industry. The resulting reduced incidence 
rates speak for themselves.
    It should also be noted that MSHA has similar alliances with labor 
organizations, including the International Association of Bridge, 
Structural, Ornamental and Reinforcing Iron Workers and the 
International Union of Operating Engineers. Important alliances also 
exist with the National Safety Council and the American Society of 
Safety Engineers. Through these alliances, MSHA has been able to 
enhance its mission of protecting worker safety and health
    Another collaborative effort resulted in the MSHA Part 46 
``Training and Retraining of Miners'' regulation in 2000. This 
excellent regulation ensures every miner knows and understands how to 
perform their job (all miners know and understand how to perform their 
jobs OR every miner knows and understands how to perform his or her 
job) safely by covering the important safety and health information 
prior to starting work and annually thereafter. This regulation was 
developed collaboratively, with input from both labor and industry 
groups, guaranteeing support of the rule by all involved stakeholders 
and assuring their commitment to the ultimate goal of injury reduction. 
The Coalition for Effective Miner Training included many industry 
groups working in a joint industry/labor arrangement in conjunction 
with MSHA to develop an effective standard for the aggregates industry. 
The Part 46 regulation resulted from this effort.
    In another example, the NSSGA and MSHA developed a cooperative 
workplace-based sampling training program of noise and dust monitoring 
workshops. A partnership agreement was signed and the training workshop 
program launched on December 1, 1997. These workshops have been given 
to industry representatives using training specialists from the Mine 
Safety Academy every year since 1997. These workshops have won two 
awards from Innovations in American Government for this joint venture 
aimed ay reducing hearing loss and silicosis through a program of 
recognition, evaluation and control of workplace hazards.
    The NSSGA/MSHA alliance was further enhanced by an ad hoc coalition 
consisting of the U.S. aggregates industry (NSSGA and MSHA) and the 
quarrying industry (Health & Safety Executive and the Quarry Products 
Association) in the England. This informal alliance was developed to 
share best practices between the countries in a similar industry.
    Based on the sharing of information about successful programs in 
the England, the NSSGA/MSHA Alliance has moved forward with joint 
efforts to implement programs that will further improve the safety and 
health of U.S. aggregates miners. The alliance first assembled a Data 
Mining Task Force to review the incident data (not fatalities) with the 
hope of elucidating specific areas where efforts could be targeted to 
reduce injuries. It is this focus on incidents, rather than the focus 
on fatalities, that offers the best chance of improving the safety 
performance and at the same time reducing fatalities.
    Simultaneously, the alliance began working on a model safety and 
health program to take the best of industry and develop a model that 
could be used by both small and large aggregate producers to develop a 
safety management system. This resulted in the publication in December 
2005 of the ``Core Principles of a Safety Program'' by the Alliance. It 
is available free on the MSHA and NSSGA websites.
    At present, the Alliance is working on promoting safety and health 
through the publication of ``rip & share'' safety tools in the 
bimonthly association magazine and articles on timely safety topics for 
the industry to use in improving their safety programs. MSHA and NSSGA 
member company representatives jointly develop these tools. The 
cooperative relationship has made great strides toward improving the 
safety of the aggregates industry.
    You can see this clearly using the data required to be submitted by 
mine operators on injuries/illnesses and manhours. The attached chart 
``Comparison of Aggregate Industry Workhours vs. Incident Rates'' shows 
that even with an increasing number of hours worked at aggregates 
producers' sites there has been a significant reduction in the total 
incidence rate in the industry. The second chart ``Aggregate Industry 
Incident Rates 1989--2004'' shows this data broken down by aggregates 
industry sector. More progress has been made since 2002 through the 
cooperative efforts of the NSSGA/MSHA Alliance.
    In no way does the NSSGA/MSHA Alliance interfere with the 
compliance program of the agency. MSHA has an important role in 
ensuring that safety at aggregates mines and quarries maintain 
standards that protect employees. The MSHA enforcement program operates 
independently of any of the cooperative industry alliances. The Mine 
Safety Act, unlike any other safety agency, requires complete 
inspections of every mine property 2 or 4 times per year depending on 
whether it is surface or underground, respectively.
    The mining industry is more heavily regulated and inspected than 
general industry covered under the Occupational Safety and Health 
Administration regulations. It is important that caution be exercised 
before rushing to impose more regulations on the mining sector. Careful 
study of the programs in place must be made and effective enforcement 
ensured.
    NSSGA believes that the cooperative relationship the aggregates 
industry has developed with MSHA has led to increased safety for 
aggregate industry employees. We believe that these relationships 
rather than being discouraged should be encouraged. They are especially 
helpful to the small- and medium-sized companies that are unable to 
afford a staff safety professional by providing the mechanisms 
necessary for continuous improvement to the safety and health of 
aggregate workers.
    NSSGA appreciates the opportunity to provide comments on this very 
important issue.



                                 ______
                                 

   Prepared Statement of Mike Neason, Administrator, Mining Practice 
         Specialty of the American Society of Safety Engineers

    My name is Mike Neason, and I am a fifth generation miner and a 
Certified Mine Safety Professional. I manage safety and health for the 
mining operations of Hanson Aggregates in Kentucky and surrounding 
states--both surface and underground mining. I come before you today in 
my role as Administrator of the Mining Practice Specialty of the 
American Society of Safety Engineers (ASSE). ASSE represents more than 
30,000 safety, health and environmental (SH+E) professionals dedicated 
to seeing that every worker has the best possible opportunity to go 
home healthy and safe from their jobs each day. The Society is the 
largest professional safety organization and, founded in 1911, has been 
in existence the longest.
    ASSE's Mining Practice Specialty--one of thirteen ASSE practice 
specialties covering the spectrum of safety and health professional 
interests--currently has more than 350 members. My colleague members 
are men and women on the front lines of managing mine safety and health 
in coal and metal/nonmetal mines, surface and underground, or providing 
training, auditing and consultation services to the mining industry.
    We commend the Committee for looking critically at mine safety and 
health issues today, both in terms of what can be done to prevent 
another disaster such as the Sago mine catastrophe two months ago and 
also to discern what can be done to improve the efficiency and 
effectiveness of the Mine Safety and Health Administration (MSHA). ASSE 
shares your concern. We have established a task force to review mining 
emergency preparedness and communications in response to the recent 
tragedies. Through ASSE's alliance with MSHA as well as our partnership 
with the National Institute of Occupational Safety and Health (NIOSH), 
we intend to help encourage an effective, proactive federal response to 
the concern many share over this nation's commitment to mine safety and 
health.
    For today's purposes, ASSE reviewed the two pending Mine Act reform 
measures, S. 2231, introduced by Senator Robert Byrd on February 1, 
2006, and S. 2308, introduced by Senator Arlen Specter on February 16, 
2006. Our comments here are initial reactions largely to the ideas 
contained in these bills. Following the work of ASSE's task force 
examining these same issues, ASSE will be able to provide the Committee 
with a more elaborate response, which we look forward to doing.
    As a preliminary matter, it is important to recognize that, while 
the loss of life in the Sago disaster was unacceptable to mine safety 
and health professionals dedicated to doing everything we can to make 
mines safe and healthy places to work, it is far from indicative of the 
overall state of mine safety and health in the United States. To the 
contrary, mine safety has drastically improved over recent decades, and 
last year marked the lowest number of fatalities in U.S. history, 
capping a general trend of declining fatalities, injuries and 
illnesses. The successes should not be overlooked based on this 
failure.
    These strides were achieved, first, through tough and effective 
enforcement of this nation's mining laws. It should not be overlooked, 
however, that efforts of government, state and private sector 
initiatives, often working in cooperation, also played a necessary 
role. Because of the commitment from each of these sectors, technology 
is getting better and better at engineering hazards out of mining and 
removing miners from exposure to hazards. We are now seeing greater 
computerization of mining methods having a substantial impact on our 
ability to manage the safety and health risks within mines, with a 
substantial promise that even better protections can be achieved.
Duplicating Responsibility for Technology Advancement
    Many of the technological advances we already have in place were 
developed through the efforts of dedicated researchers at the National 
Institute for Occupational Safety and Health (NIOSH), which houses the 
former Bureau of Mines. As we indicated in a recent letter to you and 
Senator Kennedy, ASSE was extremely disappointed that a NIOSH 
representative was not permitted by his agency--the Department of 
Health and Human Services--to participate in last month's roundtable on 
mine safety technology. NIOSH's Mine Program is already positioned to 
conduct effective intramural research, and, by expanding its already 
proactive outreach to academia and private sector resources, to support 
extramural research and develop pilot programs that can test the 
viability of new mine safety technology in real-world situations.
    With all due respect to Senator Byrd and his fully understandable 
effort to examine new approaches for protecting miners--especially 
since the unacceptable price of Sago tragedy is being paid by citizens 
of his own state--ASSE cannot support legislative proposals, as 
included in S. 2231, that would create an Office of Technology within 
MSHA or in any other way diffuse this nation's already limited mining 
safety and health research. Any duplication of NIOSH's technology 
transfer and research infrastructure would only spread resources thin 
and most likely add a needless layer of bureaucracy that would delay 
the development and implementation of new measures to protect miners.
    Significantly, Congress originally tasked NIOSH with performing the 
research to inform MSHA regulatory decisions in the 1977 Mine Act, in 
which Section 501 directs NIOSH to ``conduct such studies, research, 
experiments, and demonstrations'' necessary, among other things
    (T)o improve working conditions and practices in coal or other 
mines * * * to prevent accidents and occupational diseases originating 
in the coal or other mining industry * * * to develop new or improved 
methods of recovering persons in coal or other mines after an accident 
* * * and to develop new or improved means and methods of communication 
from the surface to the underground area of a coal or other mine.
    The same legislation created MSHA, and the rationale for assigning 
these responsibilities to NIOSH rather than MSHA was to keep research 
independent and distinct from regulatory and enforcement influences. 
The reason to for keeping these functions separate still exists. ASSE 
could not support creation of a duplicative effort within MSHA. MSHA 
should have every resource necessary to focus on enforcement and 
reaching out, not only to NIOSH, but the private sector as well to help 
ensure that its methods and the expertise of its staff keeps current 
with technological advances and incorporates ongoing change into its 
culture. A new commitment to outreach, not a new department, is not 
needed for that to occur.
    If any change is needed, it is the current Administration's 
commitment to NIOSH. For Fiscal Year 2007, $5 million has been proposed 
to be taken from NIOSH, this after many of its essential capabilities 
were taken away in the name of Centers for Disease Control and 
Prevention reorganization. We urge the Senate to reject this reduction 
in commitment and increase NIOSH's resources so that NIOSH can better 
fulfill its mandate to conduct mine safety and health research, develop 
technology and provide training support materials.
Mine Safety Technology
    With respect to mine safety technology, the Sago disaster has 
pointed out that gaps exist in protections for underground miners--both 
coal and metal/nonmetal. Although many mines, such as the ones that I 
oversee, go beyond compliance with MSHA's mandatory standards, others 
unfortunately adhere to the bare minimum standards, with the result 
that lives may be lost due to inadequate respiratory protection and 
technologically obsolete communication systems.
    As indicated at the February 15 Subcommittee on Employment and 
Workplace Safety hearing, the market makes readily available products 
that function in the same manner as the one-hour Self-Contained Self-
Rescuers (SCSRs) but provide expanded protection from toxic gases that 
can be created in mine fires or present in gassy mines even without an 
accident. Promising technologies also exist for locating or 
communicating with miners underground, such as the text messaging 
technology currently being tested in approximately 140 mines throughout 
the world. We agree that redundant communications systems that can 
demonstrate effectiveness make a great deal of sense.
    However, when considering what is and may not be feasible, focus 
must be placed on post-incident functionality when electrical systems 
may not be working. We urge both NIOSH and MSHA to investigate this 
issue thoroughly and to explore the utility of technologies developed 
by the U.S. Department of Defense, the National Aeronautics and Space 
Agency, and the fire service industries post-911 for communication with 
firefighters in emergencies. Although we understand that there may be 
real promise in current communication advances, the transfer of such 
technology to the underground mining industry is very much in question. 
Neither Congress nor MSHA should rush to force solutions by assuming 
the viability of these products before in-mine tests and research can 
be conducted and such products become commercially available. At this 
point in time, there simply is no one-size-fits-all solution to 
underground mine communication, respiratory protection, or mine rescue, 
as much as we all would wish it.
    Although, as Senator Specter suggests, some mines might easily 
adopt oxygen stations that provide a four-day supply of clean air for 
all mines in each working area of a mine, this might not be readily 
accomplished in some smaller mines such as those in the anthracite 
sector, or those with low passageways. There may, in the alternative, 
be other ways of achieving the goal more feasibly in such mines. Until 
the information is available, such regulations should not be 
congressionally mandated. While the Mine Act has historically been 
considered a ``technology forcing'' statute, there are realistic limits 
as to what can be achieved. To be truly effective, any action meant to 
improve safety--whether mines or any workplace--through technology must 
fully consider whether appropriate ``off the shelf'' technology is 
readily available before mandates are put in place.
Incentives for Technology
    Congress must also be aware that, in the metal/nonmetal sector, 
approximately 98 percent of underground mines are classified as ``small 
business entities'' under U.S. Small Business Administration criteria. 
Many coal mines especially are small business enterprises with as few 
as five employees.
    ASSE hopes the Committee will consider this reality and look for 
creative solutions, such as establishing new tax incentives, giving 
operators some credit against citation penalties to encourage them to 
adopt new technology quickly, or making establishing small business 
loans for the purchase of mine rescue, communications and personal 
protective equipment. Such measures should help expedite the necessary 
protection of miners without unnecessarily diminishing the economic 
viability of these mining businesses, many of which are located in 
economically deprived areas of our nation.
Effective Penalties
    Both legislative proposals offered by Senators Specter and Byrd 
would increase significantly penalties for violations of MSHA 
standards. ASSE fully supports strong enforcement and the role 
meaningful penalties can play in focusing an employer's attention 
toward safety and health of its workers.
    From the popular reaction to the Sago tragedy, it is apparent that 
many outside the mining industry may not be aware that MSHA already has 
more enforcement power than any other federal agency, including: 
mandatory quarterly inspections of all underground mines; warrantless 
search authority and automatic right of entry under Section 103(a) of 
the Mine Act; strict liability enforcement powers; mandatory civil 
penalties for all citations; and civil penalties that have been 
increased from $10,000 to $60,000 in the past decade. Under Section 
110(c) of the Mine Act, individual agents of management can be 
personally fined up to $60,000 for actions or omissions that constitute 
aggravated conduct--a power lacking in the Occupational Safety and 
Health Act covering every other industry. Moreover, the current Mine 
Act has felony criminal enforcement provisions of up to five years of 
incarceration, and, unlike OSHA, no injuries need occur for MSHA to 
recommend criminal prosecution by the U.S. Department of Justice.
    However much we would like to think that increases in maximum 
penalties may be appropriate, in the day-to-day reality of the mining 
industry that I work in, the heightened penalty levels of $500,000 for 
high negligence violations (compared with OSHA's $70,000 maximum), the 
$10,000 minimum penalty for ``serious'' violations--especially when 
compared with OSHA's maximum of $7,000 for similar violations--and the 
other enhanced penalties and ``user fees'' suggested in S. 2308 and S. 
2231 could very well put the average, well-meaning mine out of business 
with a single penalty.
    Moreover, as drafted, the legislation offering these increases is 
often ambiguous. For example, ``habitual violators'' would be subject 
to a minimum penalty of $20,000 for ``significant and substantial'' 
citations. However, the legislation does not define ``habitual'' and 
includes no statute of limitations after which a repeated violation 
would no longer trigger this mandatory minimum. Because MSHA does not 
``group'' violations into a single citation as OSHA commonly does, it 
is not unusual for a mine to have multiple guarding or equipment 
violations in a single inspection. If each individual citation were 
assessed at $20,000 because these triggered the ``habitual'' provision, 
most mines could not withstand the penalty burden and continue to 
operate. This area must be more critically explored before any new 
categories of penalties are created.
Unintended Consequences
    We also want to caution the Committee that some provisions of the 
proposed bills, though well intended, should be reconsidered following 
this hearing to ensure that unintended consequences do not result in 
everyone's understandable eagerness to prevent another Sago from 
occurring.
    For example, provisions that would deny the Federal Mine Safety and 
Health Review Commission (FMSHRC) authority to modify penalties, or 
requiring abatement action on all citations within 24 hours--have 
critical due process implications that cannot be overlooked by this 
Committee if it is to move forward an effective program of reform.
    It also appears that, while the technology provisions of the 
proposed legislation largely concentrate on underground coal mines, the 
penalty provisions would cover all categories of mines, including 
surface aggregate operations that do not involve the same level of 
hazards as do underground operations. Such action appears unwarranted 
at this time. In particular, Section 7 of Sen. Byrd's bill incorporates 
the definition of ``coal mine'' from the 1977 Act, which expands 
coverage to surface and underground metal/nonmetal mines and to all 
independent contractors performing any work at any mine, surface or 
underground Congress' intent with respect to the proposed Senate 
legislation must be more clearly articulated to prevent inadvertent 
expansion of the provisions to those outside the underground coal 
mining sector.
    Other suggested provisions, such as a $100,000 minimum fine for 
failure to notify MSHA of an accident within fifteen minutes, are 
simply unachievable and may result in unintended consequences in 
individual situations. In many cases, especially in small mines with 
few workers, those who would make the call to MSHA must also be 
involved in immediate rescue activities longer than this time period 
would allow. Current provisions state ``immediately,'' which the FMSHRC 
has interpreted this to mean ``two hours or less.'' Moreover, there are 
eleven categories of accidents where this fifteen-minute notification 
requirement would apply, as set forth in 30 CFR 50.2(h), so it could 
very well not be apparent within fifteen minutes that an incident such 
as a mine fire or a non-fatal injury falls into the immediately-
reportable category. Clearly, we all like the response to mine 
tragedies to be immediate, but fifteen minutes is probably less than 
can be mandated effectively, especially given the enormity of fine for 
failure without regard to the impact of the accident. We urge the 
Committee to work with MSHA, NIOSH and stakeholders to reexamine this 
provision in order to determine a more meaningful way to ensure 
emergency response.
    With regard to mine rescue teams, Sen. Byrd's legislation would 
direct all coal mines to have rescue teams consisting of their own 
employees. If this is to be achieved, the consequences of either closed 
mines or a market for coal that bears this cost must be understood. 
Many small mines have too few workers to field a team. This is why MSHA 
has for many years permitted mines to join together to form area rescue 
teams of highly trained personnel. This practice has been demonstrated 
to work effectively over many years and can remain as an effective 
option.
Conclusion
    ASSE commends the Committee for its consideration of these various 
issues as well as Senators Specter and Byrd for their efforts in 
defining specific solutions to issues with which we all struggle. This 
leadership is needed if we are to move forward and help prevent another 
Sago tragedy. However, we urge the Committee not simply to assume a 
lack of MSHA enforcement powers or too weak penalties are the root 
cause of the failures we have seen. Along with an examination of 
penalties and more stringent requirements, the Committee must consider 
other factors that may not be readily apparent.
    It could be that the most effective solution is that MSHA make 
better, smarter use of its current powers and target enforcement 
resources more directly at the proven ``bad actors'' rather than being 
required to inspect all mines in exactly the same way, regardless of 
their compliance history or safety and health performance. It may be 
appropriate, if the Mine Act is reopened, to provide the agency with 
more flexibility in terms of these mandatory inspections so it can 
deploy its inspectors where they are most needed. More effective and 
not merely more severe enforcement may very well be the answer we all 
seek. Again, we urge the Committee to work with MSHA, NIOSH and 
stakeholders, both within industry and organizations like ASSE to help 
make these determinations. .
    ASSE thanks the Committee for including us in your deliberations. 
We stand prepared to provide further technical assistance through our 
Mining Practice Specialty as the Committee continues to explore these 
critical mine safety and health issues. We also pledge our support in 
working with MSHA and NIOSH as they look for new methodologies to 
protect miners and to improve existing standards, programs and outreach 
efforts.

                                 
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